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William /\.Hsi-mmoncl 
SLurijeoTi General U,S-A 



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SMITHSONIAN DEPOSIT 




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DEFElSrCE 



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BRIG. GEN'L ¥1. A. HAMMOND. 



SURGEOI^ GENERAL U. S. ARMY. 



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DEFENCE 



BRIGADIER GENERAL WM. A. HAMMOND, 

SUKGEON GENERAL U. S. ARMY. 



The accused has been arraigned and tried upon the follow- 
ing charges and specifications : 

Charges, and Specifications -preferred against Brigadier General William A. Ham- 
mondj Surgeon General United States Army. 

CHARGE I. — -"Disorders and neglects to the prejudice of good order a.nd 
military discipline." 

Specification 1st. — "In this; that he, Brigadier General William A. Ham- 
mond, Surgeon General United States Armj^, wrongfully and unlawfully con- 
tracted for, and ordered Christopher C. Cox, as Acting Purveyor in Baltimore, 
to receive blankets of one William A. Stevens, of New York. This done at 
Washington city, on the seventeenth day of July, in the year of our Lord one 
thousand eight hundred and sixty-two." 

Specification 2d— "In this; that he. Brigadier General Williavi A. Ham- 
mond, Surgeon General as aforesaid, did, on the first day of May, in the year of 
our Lord one thousand eight hundred and sixty-three, at Washington city, 
wrongfully and unlawfully, and with intent to favor private persons, resident in 
Philadelphia, prohibit Christopher C. Cox, as Medical Purveyor for the United 
States, in Baltimore, from purchasing drugs for the army in said city of Balti- 



Specification 3d— "In this; that he, the said Brigadier General William A. 
Hammond, Surgeon General United States Army, did unlawfully order and cause 
one George E. Cooper, then Medical Purveyor for the United States in the city of 
Philadelphia, to buy of one William A. Stevens blankets, for the use of the Gov- 
ernment service, of inferior quality ; he, the said Brigadier General William A. 
Hammond, then well knowing that the blankets so ordered by him to be pur- 
chased as aforesaid were inferior in quality, and that said Purveyor Cooper had 
refused to buy the same of said Stephens. This done at Philadelphia, in the 



State of Pennsylvania, on the twenty-eighth day of May, in the year of our 
Lord one thousand eight hundred and sixty-two." 

Specification 4th — In this ; that he, the said Brigadier General William A. 
Hammond, Surgeon General as aforesaid, on the fourteenth day of June, in the 
year of our Lord one thousand eight hundred and sixty-two, at the city of Wash- 
ington, in the District of Columbia, unlawfully, and with intent to aid one Wil- 
liam A. Stephens to defraud the Government of the United States, did, in writing, 
instruct George E. Cooper, then Medical Purveyor at Philadelphia, in substance 
as follows : 

'Sir : You will purchase of Mr. W. A. Stephens eight thousand pairs of blan- 
kets, of which the enclosed card is a sample. Mr. Stephens' address is Box 2500, 
New York. The blankets are five dollars per pair;' and which blankets so or- 
dered were unfit for hospital use." 

Specification 5th — "In this ; that he, the said Brigadier General William A. 
Hammond, Surgeon General United States Army, on the sixteenth day of June, 
in the year of our Lord one thousand eight hundred and sixty-two, at the city 
of Washington, did corruptly, and with intent to aid one William A. Stephens 
to defraud the Government of the United States, give to the said William A. 
Stephens an order, in writing, in substance as follows : 'Turn over to George E. 
Cooper, Medical Purveyor at Philadelphia, eight thousand pairs of blankets;' 
by means whereof the said Stephens induced said Cooper, on Government ac- 
count, and at an exorbitant price, to receive of said blankets, which he had be- 
fore refused to buy, seventy-six hundred and seventy- seven pairs, and for which 
the said Stephens received payment at Washington in the sum of about thirty- 
five thousand three hundred and fourteen dollars and twenty cents." 

Specification 6th — "In this ; that he, the said Brigadier General William A. 
Hammond, Surgeon General United States Army, on the thirty-first day of July, 
in the year of our Lord eighteen hundred and sixty-two, at the city of Philadel- 
phia, in the State of Pennsylvania, well knowing that John Wyeth & Brother 
had before that furnished medical supplies to the Medical Purveyor at Philadel- 
phia which were inferior in quality, deficient in quantity, and excessive in price, 
did corruptly, unlawfully, and with intent to aid the said John AVyeth & Brother 
to furnish additional large supplies to the Government of the United States, and 
thereby fraudulently to realize large gains thereon, then and there give to George 
E. Cooper, then Medical Purveyor at Philadelphia, an order, in writing, in sub- 
stance as follows : 'You will at once fill up your store-houses, so as to have con- 
stantly on hand hospital supplies of all kinds for two hundred thousand men for 
six months. This supply I desire that you will not use without orders from me.' 
And then and there directed said Purveyor to purchase a large amount thereof, 
to the value of about one hundred and seventy-three thousand dollars, of said 
John Wyeth & Brother." 

Specification Tth— "In this; that he, the said Brigadier General William A. 
Havimond, Surgeon General United States Army, about the eighth day of Octo- 
ber, in the year of our Lord eighteen hundred and sixty-two, at Washington 
city, in contempt of, and contrary to the provisions of, the act entitled 'An act 
to reorganize and increase the eflBciency of the Medical Department of the Army,' 
approved April 16, 1862, did corruptly and unlawfully direct Wyeth & Brother, 
of Philadelphia, to send forty thousand cans of their 'Extract of Beef to vari- 



I 



ous places, to wit : Cincinnati, St. Louis, Cairo, New York, and Baltimore, and 
send the account to the Surgeon General's Office for payment ; and which 'Ex- 
tract of Beef so ordered was of inferior quality, unfit for hospital use, unsuit- 
able and unwholesome for the sick and wounded in hospitals, and not demanded 
by the exigencies of the public service." 

Specification 8tli— "In this ; that he, the said Brigadier General William A. 
Ilammojid, Surgeon General United States Army, about the frst day of March 
in the year of our Lord eighteen hundred and sixty-three, at Washington city 
in disregard of his duty, of the interests of the public service, and of the re- 
quirements of the act entitled 'An act to reorganize and increase the efficiency of 
the Medical Department of the Army,' approved April 16, 1862, did order and 
direct that the Medical Inspectors should report the result of their inspections 
direct to the Surgeon General." 

CHARGE II. — "Conduct unbecoming an officer and a gentleman." 

Spfcification 1st— "In this; that he. Brigadier General William A. Ham- 
mond, Surgeon General United States Array, on the thirteenth day of October 
in the year of our Lord eighteen hundred and sixty-two, at Washington city, in 
a letter by him then and there addressed to Dr. George E. Cooper, declared in 
substance that the said Cooper had been relieved as Medical Purveyor in Phila- 
delphia because, among other reasons, 'Halleck,' meaning Major General Henry 
W. Halleck, General-in-Chief, requested, as a particular favor, that Murray might 
be ordered to Philadelphia ; which declaration so made by him, the said Briga- 
dier General William A. Hammond, Surgeon General as aforesaid, was flilse." 

An additional charge and specifications preferred against Brigadier General 
William A. Hammond, Surgeon General United States Army : 

CHARGE III —"Conduct to the prejudice of good order and military dis- 
cipline." 

Specification 1st— "In this; that he, the said Brigadier General William A. 
Hammond, Surgeon General United States Army, on the 8th day of November 
A. D. 1862, at Washington city, did, unlawfully and corruptly, .order and cause 
Henry Johnson, then Medical Storekeeper and Acting Purveyor at Washington 
city, to purchase three thousand blankets of one J. P. Fisher, at the price of 
$5.90 per pair, and to be delivered to Surgeon G. E. Cooper, U. S. A., Medical 
Purveyor at Philadelphia." 

Specification 2d— "In that he, the said Brigadier General William A. Ham- 
mond^shoMi the 3d day of December, A. D. 1862, at Washington city, unlaw- 
fully and corruptly purchased, and caused to be purchased, of J. C. McGuire k 
Co., large quantities of blankets and bedsteads, and which were not needed for 
the service." 

By order of the President of the United States : 

Judge Advocate General. 



In submitting to the consideration of the Court a case 
which has occupied nearly three months of incessant labor, 
and has been stretched by the prosecution over a very exten- 
sive field of enquiry, the accused feels that a few prefatory 
words may not be inappropriate. 

The patient and courteous attention the Court has given 
to the case, justifies him in the expectation that they will 
weigh carefully, and with candid minds, the views of the 
law and the testimony it becomes his duty to develop, and 
he hopes that beyond this, they will appreciate the peculiar 
circumstances surrounding and influencing his responsible 
and greatly complicated duties, which he thinks should be 
measured by no contracted rule deduced from the past ex- 
perience of the service, but ought to be estimated in the 
light of a new and suddenly developed necessity, which, tax- 
ing to the utmost the resources of the country itself, de- 
volved upon the Department over which the accused was 
called to preside, duties and responsibilities to which its 
previous machinery was very inadequate, and which de- 
manded prompt and energetic action. The accused is very 
far from indulging in any self-laudation^ but common justice 
he thinks requires that whatever there was peculiar in the 
surroundings of his official position should be fairly consid- 
ered. A system of administration adequate to supply the 
wants of less than twenty thousand men during a time of 
unbroken peace, stands in striking contrast to the require- 
ments of a Department called upon to minister to the myriad 
w^ants of a million of men. It was likewise essential that 
as this great country in its struggle against rebellion had 
attracted the regards and admiration of the world by the 
rapid and wonderful development of its resources in all other 
l)ranches of the national service, the administration of its 
Medical Department should also be equal to its new expe- 
rience, and that the soldiers of the State should not only go 
into the field fully supplied with medical stores, but that in 
camp and hospital, on the field and in the bureau, our sys- 
tem and its practical working should at least be equally ef- 
ficient with that of any of the leading European nations, 
of whose experience in frequent and protracted wars we 
had become the heritors. 



It was, therefore^ with no little ambition thus to admin- 
ister his Department, and with large views of his duties and 
responsibilities that the accused went into office. 

In his construction of the powers conferred upon him by 
the law, the then existing regulations, themselves law, and 
the former practice of the Bureau itself, he does not consider 
himself mistaken ; for his experience has but the more 
strongly satisfied him that for the energetic and thoroughly 
intelligent administration of the Surgeon General's office, 
there should be resident in that officer the power of prompt 
action, when circumstances, sudden in their origin and in 
the very nature of things known to him in advance of, and 
more completely than to his subordinates, require such 
action. He will presently fully discuss the law of the case, 
and trusts to make clear to the Court the correctness of the 
view by which he has been governed. Before doing this, 
however, he has a single reference to make to the imputa- 
tions upon his official integrity and personal honor involved 
in the charges and specifications upon which he has been 
tried. 

To lose an official position, even though it be as high and 
honorable as the one he holds, is of small relative import- 
ance ; but to have a reputation hitherto unstained and un- 
suspected, held up to the notice of his fellow-citizens and 
the scrutiny of his military peers, upon allegations of fraud, 
corruption, and even of personal untruthfulness, is more 
difficult to bear. Upon this part of the case he points to 
the twenty-four hundred pages of record before you, on 
which it has been sought to impress the proof of his corrupt 
conduct, and he invites to it your closest scrutiny, in the ab- 
solute confidence of an integrity of purpose and conduct its 
volumes fully vindicate in despite of a prosecution that has 
spared no labor to convict, and of the marked peculiarities 
of which he will not at this time trust himself further to 
speak. 

The moment that lie found that his official conduct was 
called into question, he sought with earnest and persistent 
effort for this opportunity of vindication, and he has been 
sedulously careful to invite the fullest scrutiny of all that he 



8 

has done. He Las desired neither evasion nor concealment, 
and he now submits his case to the consideration of the 
Coiirtjwhose members can have no feeling beyond the soldierly- 
desire to reach such conclusions as may be justified by the 
substantial merits of the case. 

At the very threshold of the enquiry then we are met by 
the question : What are the powers and duties of the Sur- 
geon General ? 

The first charge is "disorders and neglects to the prejudice 
of good order and discipline." 

And the first specification is that the accused "wrongfully 
and unlawfully contracted for and ordered Christopher C. 
Cox, as Acting Purveyor in Baltimore, to receive blankets 
of one William A. Stephens of New York. This done at 
Washington City, on the seventeenth day of July, in the 
year of our Lord, one thousand eight hundred and sixty-two." 

It is sufficient for the present enquiry to take the order of 
the Surgeon General, p 34 of tlie record, as the basis of this 
specification, without enquiring as to what preceded it, but 
for the purpose of the argument assuming that this was the 
first step leading to the order given by Dr. Cox to Stephens, 
on the 38th page of the record. With this must also be 
associated two other facts ; first the telegram from Dr. Cox 
to the Surgeon General, dated 2nd July, 1862, on page 00, 
and the telegram of Dr. Cox to Mr. Stephens, on the 4th of 
July, 1862, page 00, and that the blankets were good and 
at a fair price. 

The facts will then appear in substance as follows : Dr. 
Cox had received an order to send a supply of blankets to 
Fortress Monroe. He had none on hand, and could not pro- 
cure them in Baltimore, and sent an agent to New York to 
get them. Of these facts he informed the Surgeon General 
by telegram of the 2nd of July, 1862. On the 3d of July 
he telegraphed Stephens in New York to send them — on the 
4th he telegraphed him not to send them, as he was supplied. 
He did not communicate these two last telegrams or the fact 
that he was supplied to the Surgeon General. 

On the 10th of July the Surgeon General ordered him to 
purchase from Stephens. 



The question is, liad the Surgeon General power by law 
to direct this purchase. 

The act under which the accused was appointed to office, 
to wit: the act of 16th of April, 1862, does not create the 
office of Surgeon General, nor does it define or limit his 
powers, except in some two or three particulars ; nor does it 
prescribe the mode of action for the powers which he may 
lawfully exercise. 

The 2d section provides "that the Surgeon General to be 
appointed under this act shall have the rank, pay and emolu- 
ments of a Brigadier General. There shall be one Assistant 
Surgeon General, and one Medical Inspector General of 
hospitals ; * * and the Medical Inspector General shall 
have, under the direction of the Surgeon General, the super- 
vision of all that relates to the sanitary condition of the 
army, * * * imder such regulations as may hereafter he 
established. 

Section 3d. There shall be eight Medical Inspectors, * * 
who shall be charged with the duty of inspecting, * * 
and who shall report to the Medical Inspector General under 
such regulations as may hereafter be established. * * 

Section 4th. All these officers shall, immediately after the, 
passage of this act, be appointed * * by selection from 
the medical corps of the army, or from surgeons in the vol- 
unteer service, without regard to their rank when so selected, 
and with sole regard to qualifications. 

Section 5th. The Medical Purveyors shall be charged, im- 
der the direction of the Surgeon General, with the selection 
and purchase of all medical supplies. * * J»i all cases of 
emergency they may provide such additional accommodations 
for the sick and wounded of the army, and may transport 
such medical supplies as circumstances may render necessary, 
under such regulations as may hereafter he established ; and 
shall make prompt and immediate issues upon all special re- 
quisitions made upon them under such circumstances by 
medical officers ; and the special requisitions shall consist 
simply of a list of the articles required, the qualities required, 
dated and signed by the medical officers requiring them." 

The substance of the whole act bearing upon the questions 



10 

involved in these issues has been inserted to avoid repetition 
when the question of the powers of the Surgeon General, 
involved in the 8th specification of the first charge, come to 
be considered. 

It is thus clearly apparent that the Legislature, by this 
act, recognize the existing office of Surgeon General, and 
also the office of Purveyor. Neither of these offices is cre- 
ated by this law ; both are embraced in its provisions. 

The rule of interpretation, perfectly consonant with the 
plainest common sense, is settled. We are to look back for 
the law creating these offices, and defining the duties ap- 
purtenant to each. 

The designation of the respective offices marks the duties 
appurtaining to them. The Surgeon General, unless there 
be some superior known to the law, implies the head of the 
Medical Department. The word purveyor means one who 
selects and purchases supplies, generally under the direction 
of another. A purveyor of the Medical Department carries 
with it the idea as inseparable from it, of an officer charged 
with the selection and purchase of medical supplies under 
the direction of the head of the Department, unless by law 
there is a restriction on the powers of that superior. 

But we are not left to philological speculation on this sub- 
ject. It has received judicial construction from the highest 
tribunal in the country whose decision is law until changed 
by constitutional legislation. 

The office of Surgeon General was created by the act of 
3d March, 1813, 3 Stat, at large, p. 819, 20 ; § 7, and ^'his 
powers and duties" were to "&e prescribed by the President 
of the United States." The office of Apothecary General 
was created by the same section, with like limitation as to 
his powers^ but that office was dropped when the military 
peace establishment was reduced by the act of 2d March, 
1821, 3d Stat. 616, § 10. 

It is well settled as any other rule of construction, that 
when power is given to the President by law over any one 
of the several branches of the Executive Department, the 
head of such Department acts as the President, and orders 
issued, or regulations promulgated by him, are orders and 
regulations of the President. 



11 

Wilcox vs. Jackson, 13 Pet., 498: U. S. vs. Eliason, 16 
Pet., 291 : Williams vs. U. S., 1 How., 614, are all cases 
directly in point, and equally so is that of Freeman vs. U. S., 
3 How., 556. 

We have then the law creating the office, and express au- 
thority given to the President to define the powers and du- 
ties of the Surgeon General. 

The earliest regulations on this subject which are now ex- 
tant are those of Sept, 1818, issued " By order (signed) 
D. Parker, Adj. & Ins. Genl.," [which were added to in 
March 1819,] and an original copy of both of which is ex- 
hibited to the Court with this paper. 

By the first paragraph the Surgeon General is made '^the 
director and immediate accounting officer of the Medical 
Department. He shall issue all orders, and instructions re- 
lating to the professional duties of the officers of the Medi- 
cal Staff; and call for and receive such reports and returns 
from them as may be requisite for the performance of his 
several duties. 

The Apothecary General was, with his assistant, empow- 
ered to ''purchase (according to an estimate therein pro- 
vided for) all medicines , &c., required for the 'public service 
of the army" — {p. 4.) 

This was the germ of the medical purveyorship. Thus 
the law continued to 1832, when new regulations signed, 
''By order of Maj. Genl. Macomb, K. Jones, Adjt. Genl.," 
dated 13th Aug., were promulgated under authority of the 
War Department. The first paragraph of these is almost 
totidem verbis, that of the regulations of 1818. There were 
then in the service Medical Directors who were charged with 
almost the identical services by the act of 16tli April, 1862, 
imposed on the Medical Inspectors, and they had to report, 
by the 2d paragraph, to the Surgeon General. The 13th 
paragraph, p. 5^ contains the same provision as to medical 
supplies to be purchased by the Apothecary, as in the pre- 
vious regulations. 

The next regulations were issued in 1840 by J. E. Poin- 
sett, Secretary of War. 

The first paragraph is as follows : "The Surgeon General 



12 

is stationed at the city of Washington, and is under the di- 
rection of the Secretary of War charged with the adminis- 
trative details of the Medical Department, and has complete 
control of all the officers belonging to it." The words in 
italics are, except in the designation of the officer, the words 
used in the 5th section of the act of 16th April, 1862, 
in giving the power of purchase, &c., to purveyors. 

Paragraph 14, p. 3. The Medical Purveyors luill under 
the direction of the Surgeon General * * * purchase all 
* (medical supplies.) 

Here we have the same phraseology used in giving power 
to the Surgeon General under the direction of the Secretary 
of War, as is given to the purveyors in their office under 
the direction of the Surgeon General, and it would be ex- 
ceedingly difficult, it is thought, logically impossible to 
make a distinction between the two. 

In 1850, Sept. 25, new regulations were promulgated by 
C. M. Conrad, Secretary of War. The first sentence of the 
first paragraph of these regulations is copied from those of 
1840. The second is as follows : ''He will assign Surgeons 
and assistant Surgeons to regiments, posts, or stations, and 
will issue all orders and instructions relating to their pro- 
fessional duties, and all communications from them, lohich 
may require the action of the Secretary of War, or the Gen- 
eral commanding the army will be made direct to him." 

In the 3d paragraph "He will require from the medical 
purveyors quarterly accounts current of moneys received 
and expended by them, with estimates of the funds required 
for the ensuing quarter ; and the returns of articles received 
and issued with duplicates of the invoices of all supplies put 
up for, and delivered or forwarded to the several Surgeons 
or Assistant Surgeons of the army and the private physi- 
cians employed. 

The 4th section provides still further for the accounting 
by the purveyors to him, and through him to, and with the 
Treasury Department. 

The 5th that the Medical Directors shall report to him, 
&c. 



13 , 

Article 7, p. 10, — The Medical Purveyors ivill, under the 
direction of the Surgeon General * * purchase all medi- 
cines, hospital stores, &c., required for the Medical Depart- 
ment of the army, &c. 

The 18th provides for the issuing of the supplies so pro- 
vided by them. 

The 19th and 20th for their accounting to the Surgeon 
General. 

Thus stood the law, and the regulations under it, without 
any material modification of them at the passage of the act 
of the 16th April, 1862. There are regulations in 1856, 
'57, and '60, but they do not modify or change those al- 
ready referred to. 

We have seen how far that law in terms changed the law 
as it then stood in relation to the Surgeon General, and the 
Medical Purveyors. That it did not in express terms repeal 
it is beyond dispute. Did it effect such repeal by implica- 
tion? 

On this point there is scarcely room for the most severe and 
accurate criticism to raise a question of doubt. The case of 
Wood vs. the United States, 16 Pet., 362, in the Supreme 
Court, involved the question of the repeal of a law by impli- 
cation, and if not conclusive is very instructive in this case. 
Judge Story delivering the opinion of the Court says, 
*'The question then arises whether the 66th section of the 
act of 1799, ch. 128, is repealed, or whether it remains in 
full force. That it has not been expressly or by direct terms 
repealed is admitted ; and the question resolves itself into 
the more narrow inquiry, whether it has been repealed by 
necessary implication. We say by necessary implication, for 
it is not sufficient to establish that subsequent laws covers 
some or even all of the cases provided for by it ; for they 
may be merely affirmative, or cumulative, or auxiliary. — 
But there must be positive repugnancy between the provisions 
of the new laws, and those of the old ; and even then the 
old law is repealed by implication only pro tanto to the ex- 
tent of such repugnancy." 

The rule thus distinctly enunciated by the Supreme Court 
is directly, and especially applicable to this case. We have 



14 

here a statute, not creating an office, but providing for an 
office already existing, and prescribing a selection for that 
office from particular classes of persons ; not prescribing the 
powers and duties of the officer, but necessarily implying 
them as well settled. There is therefore not only no repug- 
nancy between the two laws, but an emphatic though silent 
recognition of the old law, both as to the Surgeon General, 
and the Medical Purveyor. Indeed the phraseology of the 
5th Section is such as to admit of no doubt that Congress re- 
cognized the existence of the former law and regulations then 
in existence. For iu the second sentence of that section they 
in terms provide new duties for the Purveyor, to be perform- 
ed under such regulations as shall thereafter be established, 
recognizing the power of some superior authority to make 
regulations, and (indirectly) the existence of regulations un- 
der which all other duties were to be performed. !Not a word 
is said of regulations in respect to the selection and purchase 
of supplies and their distribution generally ; as to all such 
duties as were theretofore imposed by regulations on the pur- 
veyors, and which were necessarily subjects of regulation, 
without which indeed there could be neither system nor ac- 
countability. But these new duties were to be performed 
under new regulations thereafter to be established, so as to 
make the whole homogeneous and consistent, and to bring 
under one head all the administrative details of the depart- 
ment. 

Every rule of interpretation combines to make the recog- 
nition of existing regulations part of the new law. The very 
phraseology of the act, the power of direction given to the 
Surgeon General and the power of selection and purchase 
under such direction are borrowed from the regulations then 
existing, and give an unmistakeable significance to the inten- 
tion of the Legislature. 

But this is not all. The Supreme Court, in the case of 
The United States vs. Freeman, 3 Howard, 364 : have re- 
moved all doubt on this subject. They say " the correct rule 
of interpretation is, that if divers statutes relate to the same 
thing, they ought all to be taken into consideration in con- 
struing any one of them, and it is an established rule of law 



15 

that all acts in pari materia are to be taken together as if 
they were one law. If a thing contained in a subsequent 
statute he within the reason of a former statute, it shall he taken 
to he toithin the meaning of that statute." 

Nothing could be more apposite to the question under con- 
sideration. The reasons of the former statute creating the 
office and giving to the President the right to define and 
limit the powers and duties of the officer when the army was 
small and the country in the midst of peace and prosperity, 
have ten-fold more force and potency Avhen applied to a con- 
dition of intestine war — when -a million of men are in the 
field, and the country is torn with the fury of hostile armies ; 
when the Medical Department is to be reorganized, and its 
powers and duties multiplied, and so vastly extended, and 
where the detail of its duties must depend on so many con- 
tingencies. 

But the opinion proceeds at page 365. "If it can be gath- 
ered from a subsequent statute in pari materia, what mean- 
ing the Legislature attached to the words of a former statute 
they will amount to a legislative declaration of its meaning 
and will govern the construction of the first statute." Here 
too we find the same reason prevailing ; for it is obvious that 
the Legislature in this last act intended to recognize the ex- 
istence of regulations by which the Surgeon General was re- 
cognized as the head of the Department, having control over 
the purchase and distribution of the medical supplies. 

Again at page 367 the Court says, "The Army regulations 
when sanctioned by the President, have the force of law, be- 
cause it is done by him by authority of law," p. 366. " The 
President sanctioned those regulations, and by doing so, del- 
egated his authority as he had a right to do to the Secretary 
of War." 

It is impossible on these citations to escape from the con- 
clusion that the Act of 16th April, 1862, left in full force 
the regulations then existing, and the power of the Presi- 
dent to modify or repeal them. 

Finally the same Court has said in The United States vs. 
Eliason, 16 Pet., 302 : The Secretary of War is the regular 
constitutional organ of the President for the administration 



16 

of the Military establishment of the nation : and the rules 
and orders promulgated through him must be received as the 
acts of the Executive, and as such be binding on all within 
the sphere of his legal and constitutional authority. 

Taking these rules as our guide, it cannot successfully be 
denied that the Surgeon General had the power to control 
the purveyors in their purchases ; to direct what they should 
purchase, when they should purchase, from whom they 
should purchase ; and prohibit them from purchasing at par- 
ticular places or from particular j^ersons. For the abuse of 
such authority he would be held amenable to the judgment 
of a Court Martial ; for a proper and faithful exercise of it 
he is responsible to his country. 

And such has been the received construction in the De- 
partment itself as is abundantly shown in this case, by the 
evidence in the record of the orders given by the Surgeon 
General Findley to purchase from the Wyeths and others. 

But we go further. We maintain that he had authority 
in the exercise of a sound discretion to make purchases him- 
self. For the power given him to direct the purveyors in 
their selection and purchase, implies the power in himself to 
make such purchases if he shg-U see fit. They are to be 
charged with the selection and purchase. But that is sub- 
ordinate to the power of the Surgeon General to direct such 
selection and purchase, and included in that general autho- 
rity to him as the less is included in the greater. And such, 
as is shown in this record by the contracts made by his pre- 
decessor, was the received construction of the office at the time 
of his accession to it. There must be something morally 
wrong, some bad motive^ some corrupt intent, to subject him 
to trial for the exercise of the power. 

The power given the purveyor is intended to be auxiliary 
to the authority granted to, and the duty imposed upon the 
Surgeon General, because it would be physically impossible 
for him in the multitude of the onerous duties imposed on 
him, to give his personal attention to the procuring of the 
supplies. It is not and was not intended to be an exclusive 
and independent power — nor is that required by the policy 
of the law, or the character of the duties with which they 



IT 

are charged. It would be inconsistent with all the residue 
of the power granted to him so to construe it, and it is in all 
respects consistent with those powers to recognize him as the 
head having the power to do the thing and them as the 
agents acting under his directions. 

Most of these positions apply with still greater force to the 
8th specification of the first charge, as to his giving orders 
to the inspectors to report directly to him. 

In the first place there was no Inspector General till Au- 
gust, 1862. From the time he did report for duty in August, 
18B2, he made no report to the Surgeon General except an 
annual report and reports on special duties, with which 
he was charged hy the Surgeon General. Such is the dis- 
tinct and positive proof on the record. 

But this order is merely cumulative. It does not prohibit 
the Inspectors from reporting to the Inspector General. Its 
utmost scope is to obtain from them that information which 
every one must see was essential to the proper discharge of 
his duties in providing for the health of the soldiers, guard- 
ing against the dissemination of disease, administering 
to the relief of the sick and wounded, and which had previ- 
ously by tacit custom been sent direct to him by the Inspect- 
ors. It is too apparent he had no other means of procuring 
the material knowledge so essential to the due administra- 
tion of his office, and without which he would have been 
justly held to accountability for neglect or incapacity, and 
it fell vv'ithin the necessary scope of his powers to require 
from all his subordinates every species of information which 
they could contribute to enable him to organize and carry 
out the schemes of medical treatment which daily exj^erience 
enabled him to ripen and perfect. Moreover it is shown that 
at the time he so ordered the Medical Inspectors to report to 
him, the regulations which the law requires to give it eifect 
had not been established. 

As though the prosecution had anticipated this construc- 
tion of the law, and to guard against a failure on that ground, 
they have followed up the first specification of the first charge 
by a second specification, charging that the accused not only 
wrongfully and unlawfully, but also with intent to favor 
2 



18 

private persons resident ia Philadelphia, did prohibit Chris- 
topher C. Cox, as Medical Purveyor for the United States in 
Baltimore, from purchasing drugs for the army in said city 
of Baltimore. 

It is not specified who the private persons were in Phila- 
delphia^ thus intended to be benefitted, nor that Dr. Cox was 
prohibited from purchasing every where else except in Phila- 
delphia, nor that he was directed to purchase from any par- 
ticular individuals — it is he was prohibited from purchasing 
in Baltimore. Greater uncertainty, less precision, a broader 
net for the introduction of loose and irrelevant proofs under 
the cover of showing the intent have rarely been presented to 
a court, and the record shows it was availed of to an extent 
that is almost marvellous. Indeed in no other way could 
they have introduced the proof they have put upon the record 
of the arrangement made by the Sanitary Commission to 
supply the hospitals in and about Washington daily with 
fresh, wholesome marketing and vegetables, and by which 
they designed to show a collusion and injurious association 
to the injury of the patients between the accused and that 
noble charity. Fortunately for the accused, and the inter- 
ests of humanity, that effort not only signally failed, and 
stands rebuked by the evidence of Dr. Abbott and Mr. 
Knapp, but it is clearly shown by the testimony of the latter 
that the accused did not fixvor the purchases in Philadelphia, 
preferred the market of Baltimore, and did not relinquish 
that preference until careful enquiry had shown that Phila- 
delphia was more reliable and cheaper. 

We come back then to the prohibition to Dr. Cox as the 
remaining ground of this specification. If we are right in 
the construction of the law, there is nothing in the evidence 
which has the weight of a feather in proving the intent 
charged. 

It is beyond dispute that nearly a year before the time 
named in this charge, the accused had established five princi- 
pal purchasing purveyorships, of which Baltimore was not 
one : that in despite of this order, which was publicly an- 
nounced and of which Dr. Cox had notice. Dr. Cox continued 
to buy and to buy largely in Baltimore, while the accused was 



19 

laying up vast stores of hospital supplies in otlier cities where 
they could be more advantageously purchased, and whence 
they could he more conveniently distributed. That they 
could be purchased more advantageously in New York and 
Philadelphia is distinctly shown, both by the testimony of 
Surgeon J. R. Smith as to Philadelphia, and the concurrent 
testimony of the bills, and witnesses scattered through the 
record. 

Now no rule is better settled both in the judicial forum and 
that of common sense and common justice in the applica- 
tion of evidence than that vv^hich prohibits the imputation of 
a wrong motive when a fair and honest one is equally appar- 
ent. We are not obliged to resort to the rule in this case, 
for it is proven that the order referred to in the specification 
was but intended to carry into effect the general order already 
mentioned, disregarded by Dr. Cox, to the extent, (as is 
shown from the tabulated statement of the amounts expend- 
ed in the several cities certified from the office of the Sur- 
geon General,) that after the promulgation of the order of 
May, 1862, establishing the purchasing depots, Dr. Cox 
actually purchased in Baltimore to an amount quite equal to 
the ratio of the purchases in Philadelphia and New York, 
taking either the population or the trade of the three cities 
as the basis of the calculation. 

There is then not a shadow of suspicion, much less of direct 
proof in support of the first two specifications of the first 
charge, and it is confidently believed the 8th specification is 
equally groundless. 

Before discussing in detail the testimony bearing on the 
different specifications, it is proper to exhibit the relation 
borne to the record by the chief witness of the prosecution^ 
Surgeon George E. Cooper, late Medical Purveyor at Phila- 
delphia. Upon his shoulders mainly rests the case of the 
Government. Smarting under rebukes administered in no 
hostile spirit, and attributing to the accused reflections upon 
his conduct with which lie had nothing whatever to do, this 
Ajax of the prosecution came into Court, with a positiveness 
of statement, and an earnestness of testimony, that rapidly 
built up allegation after allegation, and his large memory of 



20 

events seemed as exliaustless as the constantly recurring 
necessities of the case. 

It gives the accused no pleasure to exhibit this witness to 
the Court in his true colors, and he will indulge in no harsh 
words in connection with him, but let the record tell the 
story of his utter discredit. If in the face of the crushing 
testimony against him, the Court can by any possibility ad- 
judicate this case on the basis of what he has said, the ac- 
cused feels that he is simply wasting the time of the Court 
by a defence, for it will surely be difficult to find in the his- 
tory of contested cases, an instance in which, in addition to 
the flagrant self-contradictions of the Avitness, such a mass of 
unimpeached testimony has borne a witness to the earth, 
as in this case. 

At the beginning of his testimony, Dr. Cooper volunteers 
the statement that he received a present, through the accused, 
of whiskey from John Wyeth, with whom he was not ac- 
quainted, and that the accused at the same time asked him to 
recommend the Wyeths to Surgeon General Finlay. Frank 
Wyeth swears, on the contrary, that the whiskey was con- 
signed to Cooper by them, through Adams' Express, and re- 
ceived by him, without any knowledge or agency of accused, 
and that the Wyeths had no need of recommendation to Dr. 
Finlay, to whom, on his own order, they had in the year 
previous, furnished over eighty thousand dollars worth of 
supplies. 

Cooper says when he so recommended the Wyeths to Dr. 
Finlay, he did not knov*^ them, and afterward he swears he 
had formed the acquaintance of the Wyeths while in Balti- 
more, and before he had his interview with Dr. Finlay on 
the subject ! He says that before he went to Hilton Head, 
he had known the Wyeths ; then says he did not know 
Frank when he returned ! He says that when he went to 
their store, on his return from Hilton Head, he had a con- 
versation with John Wyeth, which Frank Wyeth flatly 
contradicts, and gives the conversation that passed on that 
occasion between himself and Dr. Cooper ! He says that he 
bought everything from the Wyeths — "■ hospital stores, 
books, instruments, and everything else," all which he sub- 



21 

sequently reiterates ; and yet later in the testimony he swears 
he got nothing hut drugs and medicines of them ! 

He says he examined the liquors and teas at the West 
Philadelphia Hospital, and they were all bad ; and Drs. 
Hayes, Baldwin and Kowe, who were the Surgeons in charge, 
contradict him, and testify that they were all used in the 
hospital service, for which they were fit, except a small lot 
of tea ! 

He says that in the latter pai't of the first week in June, 
1862, Wm. A. Stevens brought to his ofiice a sample of 
blankets of which he said he had 8,000 pairs, and when it 
became necessary to prove by Paton the value of these 
blankets, and Paton fixed as the latest day when he eould 
have seen them at Cooper's ofiice, the second of June ; he 
produces a letter from Stevens to him of June 2d, stating 
that Hayes had the day before sent to him (Cooper) the 
sample blankets, together with a letter to himself (Stevens) ; 
while Stevens swears positively he never saw the sample of 
blankets so referred to ! He swears that on the 15th June 
he wrote a letter to the accused, which he copied upon paper 
used in his office at Philadelphia, which copy he produces 
and puts on the record, and that the original of that letter 
was put away in a pigeon-hole of his desk, of which he gen- 
erally carried the key, and to which his clerks had not ac- 
cess ; while not one of his clerks ever saw any such paper in 
his ofiice, all testifying to his unvarying use of a wholly dif- 
ferent character of paper ; they also proving that they had 
free access to his desk and drawers, and that they were never 
locked but when he had money in them on Saturdays ! Be- 
sides all which Captain Elliot, one of them, and a confiden- 
tial clerk, swears he had constant access to his desk, and 
frequently arranged the papers in the pigeon-holes ! 

He is positive in his recollection that he saw the accused 
in Philadelphia as early as July 29th, 1862, while Dr. J. 
K. Smith, as well as the letter on record of the 29th of July, 
and the telegram of the 30th, establish the fact that the ac- 
cused had not at tlie time left Washington ! 

He says Magruder's requisition in August, was left by the 
accused at Wyeth's store to be put up and to be received, 
issued and paid for by him (Cooper,) that accused wrote on 



22 

it what was to be put up by Wyeth, and what by himself: 
and that said requisition was brought to him by Frank 
Wyeth, and that only after repeated requests : while Frank 
Wyeth positively swears that the requisition was left with 
him by accused because he had not time to go to Cooper's 
office, with instructions to take it to Cooper ; and that he did 
so take it to him within a few hours after he received it, and 
that the order to furnish was given by Cooper. 

He swears that he examined Tiklen's Extract of Beef at a 
time when it is shewn by the proof it was not even manufac- 
tured. He swears that he gave no orders to VvTyeth for Sul- 
phate of Cinchonia, and we put on the record three ! 

He swears lie traded his horse and saddle to John Wyeth 
for a horse and buggy, and that he did not return either 
horse or buggy — he then swears he did return the wagon, 
because he did not want to be under obligations to Wyeth ; 
and then on re-esamination he swears he returned it, because 
it was part of the bargain 1 

He swears he was buying of Paton, in June, 1862, ten 
pound white blankets, at 45 cts. a pound, and the proof is clear 
that there is no such thing known in the market as a ten 
pound white blanket, except for family use ! 

He admits that without the knowledge or consent of Dr. 
Murray, his successor in the office of purveyor, he caused to- 
be copied by one of the purveyor's clerks, a private letter to 
Dr. Murray from Dr. A, K. Smith, which he says he found 
in his office, and which copy he was also bold enough to 
produce and put in evidence, because it seemed to bear on 
the case of the accused. 

He swears that in a conversation with Medical Inspector 
Vollum, he did not use certain language of bitter hostility 
to the accused. And Inspector Vollum swears he did t 
He swears that he did not use language about the accused, 
also shewing his hostility in conversation with Dr. A. K. 
Smith ; and yet Dr. Smith proves positively that he did I 
He swears that in connection with the letter to him from the 
Surgeon General of 13th October, he tlid not use in relation 
to the accused the v>^ords to which he was directly interroga- 
ted on cross examination ; and Frank Wyeth proves that he 
shewed him that letter, and speaking of the accused, said, 



23 

"here's a letter from Bill Hammond, the g — d d — d son of 
ah — h, this goes to the Secretary of War to-night!" and 
the letter in question a ^private letter to him, at that ! 

But to repeat all the instances of similar contradictions and 
misstatements the record discloses would fatigue the Court, 
and the accused will only add two or three conclusive in- 
stances. Dr. Cooper swore with great positiveness that he 
never wrote a letter to the accused, bearing date June 16th, 
18G2, and subsequent to his interview with Stevens about the 
blankets, and that he received no communication from him 
in that connection, except the telegram of the 17th of June : 
he swears that in his interview witli accused of 3d May, 
1862, he was directed to make all his purchases from the 
Wyeths, and acted in obedience to such instructions, and 
that on the 31st of July he was instructed to purchase from 
them upwards of $200,000 of the requisition for two hundred 
thousand men, which he only obeyed in part ; and yet we 
produce and put on the record two letters from the accused to 
Mm — one of date 17th June, and the other 29th July, 1862, 
and received by him on the 18th June and 30th July re- 
spectively, which utterly destroy all confidence in any of the 
statements so made by him. 

As these letters not only bear directly upon the value and 
credibility of Dr. Cooper's testimony, but throw a flood of 
light over three of the principal specifications, we will brief- 
ly discuss the evidence by which their authenticity and the 
fact of their reception by Cooper are established. That they 
were pertinent and admissible as evidence the Court has in 
accordance with settled law, already decided. 

Now, if we establish that these letters vfere written by 
the accused, and that they were received by Dr. Cooper at 
the time of the endorsements upon them, we add to the con- 
tradictions already indicated in the case of this witness and 
destroy any possible vestige of doubt as to his utter unrelia- 
bility, because the letter of the 17th June, demolishes his 
sworn statement that he had written no letter to the Surgeon 
General on the 16th of June, or any letter in connection 
with the blanket transaction except those put on the record. 
That he must have written to the accused on the 16th of 
June about Stevens and the blankets, is clearly shewn by the 



24 

• 

whole tenor of the reply of the Surgeon General of the 17th. 
It says, "I telegraphed you to-day immediately on receipt 
^'of your letter to do as you thought best about Steven's 
"blankets. His offer to me was at $5, and I thought the 
"sample worth the money. I mentioned the price merely 
"that you should not pay more than that sum for them, — 
"Are you sure that those he offers at |4.60, are the same 
"that he asked me $5 for." 

Now the only letter upon the record and sworn to by 
Cooper as having been written by him to the Surgeon Gren- 
eral on the subject of these blankets, is the infamous one of 
the loth of June, in which his bitterness of feeling to the 
accused finds vent in suggestions of the grossest insult to 
his superior officer, and which letter was never sent to or 
received by the accused, and which Cooper has sworn was 
copied by him on the blue lined paper "in use in his office," 
but which paper not one of his clerks, as they have proved, 
ever saw there, or heard of being there, and which co})y he put 
away in one of the pigeon holes of his locked desk, which 
desk the same clerks prove was not kept locked but open to 
their free access, and to the pigeon holes of which, one of 
them, Captain Elliot had access and had frequently assorted 
the papers in it for Cooper ; yet without ever seeing this copy, 
or anything whatever written upon the same character of 
paper. 

This letter of Jimelo, said not 07ie loord about the price 
of the hlankets, offered to him hy Stevens. 

That being the only letter then that according to Cooper's 
testimony he had written to the Surgeon General on this 
subject, how was it 'possible for the accused to knoiu on the 
17th that Stevens had offered the blankets to him, Cooper, at 
$4. GO, a7Kl how could the accused have ivritten to Cooper on 
the 11th, ''are you sure that those, he Stevens, offers at 
$4.60 are the same he asked me $5 for f and how could he 
have said further in the same letter, "whenever I send you 
orders to make particular purchases, it is of course with the 
full understanding on my part, that if you see any ob- 
jections you will refer the matter back to me for instructions, 

AS IN THIS CASE." 

The very text of the letter shews conclusively that after 



25 

Stevens had the interview with him ahout the blankets, and 
for the Jirst time, Cooper learned anything about their price 
being $4.60^ icldch icas on the morning of the l&h of June, 
when as he swears himself and Stevens proves, $4.60 was 
named to him as the price. Dr. Cooper did write to the 
Surgeon General, naming the offer of Stevens and referring 
the matter of the purchase to his superior for instructions. 

Immediately upon the receipt of this letter by the Sur- 
geon General, follow in natural sequence, the telegram of 
the ITth June telling Cooper to do as he thought best about 
the blankets, and later in the same day this letter, more 
fully reiterating the substances of the despatch, and giving 
the views of the accused upon the subject. This is the natu- 
ral, logical and unavoidable conclusion. But beyond all 
this, the testimony amounts to absolute proof, for we estab- 
lish the letter of June 17th to be in the handwriting of the 
Surgeon General by five witnesses, all conversant with it, 
and we prove the endorsement of its receipt by Dr. Cooper 
to be in his handwriting by the same number of competent 
witnesses, who having been at the time the clerks in his of- 
fice, and in daily and familiar contact with his handwritings 
are the best witnesses that could have been produced on that 
point ; and not resting there, we prove it to have been about 
the time stated in the endorsement in the possession of Dr. 
Cooper, by Captain Elliot who swears to that fact. 

Against this overwhelming testimony, the prosecution in 
faint rebuttal, puts on the stand three or four highly 
respectable gentlemen, who have known Dr. Cooper at in- 
tervals for several years past, have had occasional corres- 
pondence with him, and who professing to be unable wholly 
to decipher the endorsement, do not, with the exception of 
Dr. Laub, express an opinion that it is not his writing, while 
one of them. Dr. Murray, rather inclines to the belief that 
it is, and even the expert who was called does not venture 
to say it is not ; and then, "most lame and impotent con- 
clusion," the Judge Advocate produces Dr. Cooper himself 
to disprove the whole matter, and he denies that he put the 
endorsement on the letter, but when sharply interrogated 
by the prosecution as to whether "he ever saw the letter 
while he was Purveyor in Philadelphia in June, 1862,'' he 



26 

goes on to quote to the Court various passages in the letter 
as '■^heing fa7niliar to Mm," with the extraordinary state- 
ment that it is impossible for him to say whether he saw 
them in that letter or elsewhere, "but they are familiar to 
me !" They were familiar to him because tliey were in that 
letter, and because when he received it on the 18th of June 
and endorsed the fact of such receipt on its baclj;, he read 
them in it, and it is sheer folly in the face of competent 
proof in a grave issue like this, to deduce from what Dr. 
Cooper says, anything but a reluctant confession of the fact 
that he had received the letter in question, which on repeated 
enquiry by the Judge Advocate he does not venture to deny. 
Some of tliese rebutting witnesses found it difficult to read 
the words of endorsement, because the pencilling had been 
so much rubbed out, and in this connection we only think it 
necessary to say that the clerks in Dr. Cooper's office at and 
before the date of the endorsement, Marochetti, Nesbitt, 
Hammond, Garigues, and Elliott, are all able to read it 
sufficiently to pronounce positively that Cooper wrote it. 

The letter of July 29, 18G2, is also conclusive in its refu- 
tation of the testimony of Dr. Cooper. 

He has sworn the Surgeon General was in Philadelphia 
on the 29th of July. The letter shews that he was not. He 
has sworn that the first and only notice he had of the re- 
quisition of July 31st, was received through John Wyeth. 
The letter embodies a previous notice. He swears that on 
the 31st July he received instructions from the Surgeon Gen- 
eral, to purchase from Wyeth & Bro. by far the largest part 
of that supply for two hundred thousand men. The letter 
shews that the accused desired that all articles should be 
bought from dealers, and states that the system of buying 
all from one person, which prevailed under the old regime, 
v/as not the correct principle, thus positively contradicting 
the alleged instructions Cooper swears he had given him to 
buy everything from the Wyeths. 

That this letter was written by the accused is also fully 
established by the witnesses, who prove the letter of 17th 
June, and that it was endorsed as received on the 30th of 
July, by Dr. Cooper, is established by proof of his hand- 



27 

writing on its back ; by Nesbitt, Hammond, Garigues, Mar- 
ochetti, Elliot and Bower. 

The fact of its receipt by Cooper is further established by 
Nesbitt, to whom Cooper read it at the time of its receipt ; 
and by Elliot, who saw it in his possession ; while Cooper 
himself, on being pressed by the Judge Advocate, to say 
whether or not he ever saw it while Purveyor at Philadel- 
phia, does not venture, though denying the genuineness of 
the endorsement, to swear that he had not so seen it, but as 
in the case of the former letter of June 17th, gives his recol- 
lections of a passage from it, which he says "is familiar to 
him." The rebutting testimony on this point is equally in- 
conclusive as in the previous case, from persons but slightly 
familiar with his hand-writing, while an examination of the 
testimony of the expert will shew the small value of his 
judgment based on comparison. 

This witness, it may be remarked, gave his opinion from a 
recent comparison of the Avriting of Dr„ Cooper, with no 
previous knowledge of its characteristics ; never having seen 
him write, and never having corresponded with him. This 
species of proof is held in very slight esteem by many settled 
rulings, and its judicial value may be seen by reference 
among others to the case of "Gurney vs. Langlands," 5 
Barnwell vs. Adolphus 930 : where the Court upon argument 
held that the opinion of Inspectors of franks for the Post- 
ofUce, whether the loriting is in a ^^ natural or imitated charac- 
ter," is of little weight, and refused a new trial, asked on 
the ground of the rejection of such evidence. 

The statement of Dr. Cooper as to his usually placing his 
endorsements of receipt at the bottom of the folded paper, 
may well enough apply to his public and purely official let- 
ters, but as this was not an official one, does not affect the 
positive testimony referred to. 

With this commentary on the character of the evidence of 
the witness Cooper, and the degree of credit to which he is 
entitled, we proceed to examine the third specification of the 
first charge and the evidence adduced in support of it. 

The gravamen of that specification is that the accused 
ordered and caused Cooper to buy the blankets from Stephens, 
(known in the record as the purchase from Hess, Kessel & 



28 

Co.,) he, the accused well knowing they were inferior in 
qimlity, and that Cooper had refused to buy them. 

The only witness in support of this allegation is Cooper 
himself. Let us examine that testimony, not by the lights 
thrown upon it from various points to exhibit its value, but 
assumins: that he is a disinterested credible witness. 

Cooper says the samples of these blankets had been left by 
Stephens at W3^eth's, some days before the 28th of May, 
1862 ; he had seen them and had declined to purchase them ; 
that on the evening of 28th May, 1862, he saw the accused 
at Wyeth's ; Wyeth asked him why he did not buy Steph- 
ens blankets ; the accused turned to him and said, why don't 
you buy them Dr. ? (p. 196.) I said they are an assorted lot, 
and I don't luantto buy different qualities of blankets to put in 
the hospitals." This is his direct, clear unembarrassed state- 
ment ; not a word said about inferior qualities. But the 
Judge Advocate follows it up by a direct leading question, 
prompting the ready answer, did you say anything of the 
quality? A. ''I said I was buying a different quality at a 
comparatively cheaper price. ' ' Not satisfied with the answer 
of his witness, the Judge Advocate presses him still further. 
Q. Better or worse? A. ''Better." Now did he say this 
to the accused? Did he say he was buying a better quality, 
or a ^'different" quality? He says to the Judge Advocate, 
"better." But he does not say he said so to the accused. 
And this is made the more clear by what immediately follows 
on the same page, (196.) Was anything said about his 
having shown them to you before? A. "I stated that I 
had refused to buy them because they "wei^e an assorted lot." 

But to remove all doubt on this subject, we have but to 
turn to the cross examination, p. 389, he says, "I did say 
on that evening to the Surgeon General, that I did not like 
the blankets, they were not the hind I luas purchasing, and 
that they luere comparatively dear" and at the bottom of p. 
390, 391, in reply to the question whether anything "was 
said between the Surgeon General and yourself about the par- 
ticular prices of the different qualities of the blankets ?" He 
says "there was nothing said about that particularly, noth- 
ing but the general remark that they were comparatively 
dear;" and again, p. 392^ my objection "was to their not 



29 

being of the kind I was using, and to their being compara- 
tively dearer than what I coukl purchase." Now the gist 
of the allegation is that the ^Surgeon General well knew ^'■iheij 
were inferior in quality. ' ' The proof is he was told Cooper had 
refused to buy because he was buying a different quality, at a 
comparatively cheaper price^ and because they were an assort- 
ed lot, they were not the kind he was purchasing, and were 
comparatively dear," and this repeated again and again. The 
proof comes far short of the specification. They may have 
been blankets of an excellent quality ; the price may have 
been a perfectly fair price, every word of the witness 
may be literally true, and the specification not proved. 
Cooper says he was buying ^'■better" blankets, but he does 
not say he so told the accused, he only told him he was buy- 
ing a different kind at a comparatively less price. Nor does 
Cooper anywhere say the blankets were in fact '•'■inferior'^ 
in quality, but the extent is he could get those he liked bet- 
ter at a comparatively less price. 

This however is all on the assumption that he has cor- 
rectly reported his interview with the accused, and the direc- 
tion he received from him. No one is here to contradict 
him. But there are strong circumstances in evidence tend- 
ing to discredit the narative he has given. 

The plain import of his testimony is that Stephens had 
left his sample blankets at Wyeth's and had rather impor- 
tuned him to buy them ; that Stephens was a friend of the 
accused, and had supported or advocated in his paper " Vani- 
ty Fair," the pretensions of the accused to his present office ; 
that the accused being in the office at Wyeth's in the even- 
ing, Cooper passing through the store to see him, saw Stephens 
standing there, and passing him by entered the office and 
remarked that he saw the Vanity Fair man down stairs, I 
said he was the sub-Editor of Vanity Fair, and immediately 
John Wyethj who was present, asked, '' why don't you buy 
his blankets, Cooper?" and the accused said '^■why don't 
you buy them, Doctor?" After some remarks further, 
the accused said, " it is policy to keep the press on our side," 
and after some further talk, said " buy them ; " the next day 
Cooper saw Stephens at his office, and told him " I had been 
directed to purchase the blankets from him." The evident 



30 

intention of this ingeniously contrived story, is to create a 
belief that when Cooper came into the room, John Wyeth 
had heen posting the accused about Stephens blankets, and 
the accused was ready and willing to oblige his supporter 
at the expense of the public interest. 

The testimony of Stephens, unhappily for this pretty 
device, testimony which has no contradiction in any part of 
it, except by Cooper ; coming from a man whose social posi- 
tion is well developed, and whose evidence will stand the 
severest scrutiny — the testimony of Stephens is destructive of 
some of its best points. 

Mr. Stephens says he had only seen Cooper once before, and 
was introduced to him by John Wyeth ; that he exhibited 
the samples of blankets to him, and Cooper did not refuse to 
buy them, but objected to them as an assorted lot ; that he 
never objected to the quality or the price. On the evening 
in question. Cooper asked him to come to his office in the 
morning ; that he had gone to Wyeth's that evening for 
medicine, and only saw Cooper as he was passing through 
the shop. The next morning he called at Cooper's office^ 
and on his entering, Cooper closed the door, asked him to 
take a cigar and seat, and proposed to put his business 
through quick ; that he did not say he had been directed to 
purchase the blankets, or anything of the kind, and the 
business was closed at once. Stephens says he had never 
seen the accused but once up to that time, nor did he see 
him again until long after that time ; his interview was a 
brief one, and he had never written a line in the paper Van- 
ity Fair, or any other, in support of the accused, and he did 
not know the accused was at Wyeth's when he went there, 
nor did he then see him. 

liere, then, are direct, irreconcileable, contradictions be- 
tween these two witnesses as to material facts, coloring the 
whole transaction, both of which cannot stand, and the re- 
cord is full of conclusive evidence to show which is Avorthy 
of credit. 

The gravamen of the 4th Specification is, that on June 14, 
1862'3 the accused unlawfully and with intent to aid Stei>hens 
to defraud the Government of the United States, instructed 
Dr. Cooper, Purveyor at Philadelphia, to purchase from said 



31 

Stephens 8,000 pairs of Llankets at $5 a pair^ wliicli blankets 
were unfit for hospital use ; and the 5t]i kSpecification charf»-es 
that the accused did on the 16th of June, 1862, corruptly 
and with intent to aid Stepliens to defraud the Government, 
order in writing said Stephens to turn over to said Cooper, 
8,000 pairs of blankets, by which means he induced Cooper 
on Government account, and at an exorbitant price, to re- 
ceive 7,677 pairs of said blankets, which he had before re- 
fused to buy, and for which Stephens received $35,314.20. 

The allegation of an intent to defraud, in the 4th Speci- 
fication, is based entirely upon the charge that the blankets 
thus ordered to be purchased, were unfit for hospital use ; and 
it is therefore only necessary to shew that the};- loere fit for 
hospital use, and the specification is fully disproved. It is 
easy to do this, for the respective Surgeons to whom they 
were exhibited in the presence of the Court, testified to their 
fitness for such use, and Dr. Cooper alone denies it. We will 
not, however, stop with this answer to the specification, but 
proceed to consider it in connection with the 5th, the essence 
of which is, the alleged fraudulent intent and the positive 
order to Cooper to receive the blankets, without anv discre- 
tion on his part. 

Let us then discuss the specifications together, for they 
are not separable in the argument, the order to Cooper in 
the 4th being part of the transaction, of which the order to 
Stephens set out in substance in the 5th is but a sequence 
and the necessary result of the order to Cooper. 

To build up these specifications, the prosecution exhausted 
much time, devoted great labor, and manifested a skill, per- 
sistency, and ingenuity worthy of a better cause. It has all 
been thrown away. 

The proof triumphantly vindicates the Surgeon General 
from the imputations thus cast upon his honor, in protection 
of which against these aspersions, let it be remembered he 
threw open the door to the fullest enquiry, letting in, with- 
out objection, much irrelevant testim.ony, and relyino- with 
unshaken confidence upon the integrity of his motives and 
conduct, which he knev/ any truthful testimony must vin- 
dicate. 

The substance of the facts given in evidence by the prose- 



32 

ciition in connexion with these two charges, mnj be con- 
densed as follows ; it being the purpose of the accused to set 
them out with entire fairness, and so far as he can, within 
the time limited for his defence, in extenso. 

The case then supposed to be made is : that about the 1st 
or 2d June^ 1862, Dr. Cooper, the Medical Purveyor at Phila- 
delphia, received from Mr. Stephens samples of white Union 
Macldnaw blankets, as they are called, 8 pound to the pair, 
the price of which Avas stated to be $5 per pair ; that on or 
about the 2d June, 1862, he exhibited this sample to Mr. 
Paton, an importer of blankets in New York, and Mr. Paton 
says he could have duplicated them for from $3.25 to $3.50 
per pair, and he thinks they corresponded with the samples 
which have been exhibited in Court, and which are part of 
tbe lot of 8,000 pairs delivered by Stephens under the order 
of the accused, set out in the oth Specification ; that these 
sample blankets remained in Cooper's office in Philadelphia 
until the 13th day of June, when they were taken away by 
Stephens, and then and up to that time Cooper had refused 
to buy the blankets ; that in the meanwhile Stephens had 
written a letter to the accused offering to sell him 8,000 
pairs of such blankets at $5 per pair. That Stephens, hav- 
ing taken his samples from Cooper's on the 13th June, 
transmitted them to the accused by express, and they were 
received by him on Saturday the 14th June ; that Stephens, 
on the same day he despatched the samples, wrote a letter to 
the accused, to wit., the 13tli June, in which he informed 
him he had sent the samples by express, and the blankets 
which he had in his former letter put at $5 per pair, could 
now be sold at $4.60, if he took the whole lot of eight thou- 
sand pairs ; that on Saturday, the 14th June, the accused, 
after the receipt of the samples, wrote the two letters or or- 
ders set out in the 4th and 5th Specifications to -Cooper and 
to Stephens respectively ; the one to Stephens being ad- 
dressed to hira at his residence in Girard street, Philadel- 
phia, although in the letter to Cooper, he had given Cooper, 
Stephens' address to his box in the post-office, New York ; 
that Cooper received the letter of the 14th on Sunday, the 
15th June, and immediately Avrote to the accused a letter, of 



33 

which a copy is put in the record ; on the morning of the 
16th June, Stephens called upon Cooper at his office, showed 
him the letter of the accused, and told him the price of his 
blankets was $4.60 per pair ; Cooper agreed to receive them 
under the order of the accused, given to him, of the 14th 
June ; they were received by him, on or after the 2l8t June ; 
the bills were certified by him to the Surgeon General's of- 
fice, and paid without his knowledge ; that he never received 
from the accused any reply to his letter of the 15th, un- 
less the telegram of the ITth June, telling him to do as 
he pleased about the blankets, was a reply, and that came 
after the transaction was closed ; and that all the letters, to 
wit : Stephens' first letter to the accused ; his second letter 
of the loth June ; the letters of the accused to Cooper and 
Stephens of the 14th June, and Cooper's said letter of the 
15th June, are not to be found among the files or records of 
the Surgeon General's office. 

This unquestionably creates a strong suspicion as to the 
whole transaction. The case made by the accused is not de- 
pendent wholly on the fading or treacherous memory of wit- 
nesses, but resting on contemporaneous writings, forming 
links in the chain of the transaction, and explaining much 
that is otherwise mysterious, sustained and welded together 
into a complete chain by the oral testimony of living actors in 
that business, leaves no room to doubt that so far as the ac- 
cused is concerned he is free from a shade upon the perfect 
integrity of his connexion' with the matter. 

The answer is : — 

It is proved by the letter written by Stephens to Cooper, 
and produced in evidence by the prosecution, that the sample 
blankets received by Cooper on the 1st or 2d June, 1862, 
were sent by Hayes, and not by Stephens. They were not 
samples of the lot of 8,000 pairs subsequently sold by 
Stephens on the 16th June. It follows that Mr. Paton did 
not see a sample of this last lot. Stejihens swears he him- 
self never saw the samples so sent by Hayes. 

It is proved by Vail, Spaulding, Andrews, Hayes and 
Townsend, that the samples of the blankets so sold on the 
16th June, were not delivered to either of the brokers until 
3 



34 

four or five days before the sale was completed. It is proved 
by Stephens that he wrote to the accused his first letter before 
he saw the sample, and he received the sample on the 12th 
June, that he transmitted that sample by express on the 
same day from New York to Philadelphia, and the next 
morning, the 13th June, took it from the express office him- 
self, and carried and exhibited it to Cooper^ and then failing 
in making a sale to him, despatched it by express the same 
day to the accused at Washington : that on the evening of 
the same day he wrote the letter of the 13tli June, and put 
it into the lamp post-office after the hour of delivery, so that 
it could not have reached Washington before Sunday, the 
15th June. , 

It is needless to enquire how it is, wherefore, when, by 
whom those original letters were taken from the office of the 
Surgeon General. We do not know. That the office was 
tampered witli by some one is shown by Dr. Smith's evi- 
dence and by the fact that letters were taken from it. Two 
of these letters are before the Court, one produced by the 
Judge Advocate from the papers of Surgeon Laub, the other 
produced by the accused, and coming to his possession as 
mysteriously as that did to Surgeon Laub. The authen- 
ticity of the papers is beyond dispute. We will presently 
see this is not all of the proofs. It is charged, and the at- 
tempt has been made to show that these blankets were unfit 
for use in hospitals ; had a foul and oifensive odor, and were 
purchased at an exorbitant price. 

The proof on these points is equally decisive. As to their 
unfitness for hospital use in their present condition, a suffi- 
cient and complete answer has been already given. But Dr. 
Cooper and Mr. Guillou, to whom he says he exhibited them, 
say the odor was very oflPensive when they were received. 
To this we reply, Dr. Cooper is the only witness to show 
they were the same blankets as those of which Mr. Guillou 
has testified : the clerks in Dr. Cooper's office, those who re- 
ceived them when they were first delivered, and those who 
delivered them when they were disbursed ; who marked each 
bale so disbursed, who were daily conversant with them 
while they remained in the purveyor's office; to wit : Mr. 



35 

Garrigues, Elliot, and Nicliols ; Mr. Spaulding, who sold 
them, and Mr. Townsend, the broker, who purchased them, 
and Stephens, who searched for the four missing bales in the 
office of the purveyor, all concur in an emphatic denial of 
such offensive odor. It cannot be true that they had such, 
odor. 

The price has been assailed. The answer is a mass of 
overwhelming proof to show that such blankets were exceed- 
ingly scarce in the market ; that there was not more than 
one other lot like them, and that was at Watson's ; the lot 
afterwards purchased by Townsend ; that the price at cash 
sales were rapidly rising in the market, and we have the con- 
current testimony of Carville, Vail, Spaulding, Toy, and the 
several brokers who were familiar with the transaction, that 
the sale to the Government at $4.60 per pair at that time, 
upon the terms in which it, the Government, was in the 
market was a fair sale. The weight is shown to have been 
what is purported to be — eight pounds to the pair. 

Moreover, it is in evidence that Medical Director King had 
received instructions to prepare largely extended hospital ac- 
commodations in Philadelphia, for the sick and wounded from 
the inhospitable and bloody fields of the Peninsula, that Cooi> 
er's supply of blankets was short, and the demand communi- 
cated to him by Dr. King was pressing. There was no time for 
the accused to wait. His duty and his humanity called up- 
on him for prompt and energetic action. He received an 
ofi'er of 8,000 hospital blankets in a rising market at $5 per 
pair ; he knew the urgent need of the service — he has sworn 
lie never received, and he now solemnly avers he never re- 
ceived that letter of the 13th June ; he acted at once, yet al- 
ways as he said to Cooper in his letter presently to be 
noticed, subject to the considerate action of the purveyor, he 
ordered the blankets, and has not for a moment regretted it 
to this day, but justifies and vindicates that order. 

A labored effort has been made by the prosecution in con- 
nexion with these two charges to show that Stephens realized 
a large profit from the sale of this lot of 8,000 pairs of 
blankets. The only purpose such a fact could serve, would 
be to show the price was exorbitant. This Court has no 
right to sift the transaction for any other purpose, and that 



36 

only so far as it may tend to sIioav the Government was de- 
frauded. Nor can it be of any service to the prosecution, if 
the evidence stops here. For whatever profits Stephens may 
have realized ; however exorbitant the price may have been ; 
however fraudulent the scheme by which such exorbitant 
price was realized, unless they go further, and show the ac- 
cused so associated in it that they can say these orders were 
given for the purpose — with the intent to enable Stephens to 
})erpetrate this fraud — they cannot impeach the accused, or 
find him guilty of these specifications. And he challenges 
an enquiry to that point, into any fact which shows com- 
plicity by him with any of the parties concerned in that sale. 
He has endeavored, with the aid of counsel, to discover any 
fact not fully and completely explained which so connects 
him with Mr. Stephens as to show any guilty knowledge 
on his part of irregularity on the part of Stephens, or 
anything but a fair business transaction. Indeed, there is 
nothing to show that he knew until long afterwards, that 
the sale had been completed. 

To make this matter more clear, it is proved by Mr. 
Stephens, and by the letter of the accused to Cooper of the 
17th June, that he had no personal acquaintance with Ste- 
phens beyond a brief interview with him in the winter of 
1861-2 ; that Mr. Stephens was backed by Dr. Hartshorne, 
of Philadelphia, a man of known high repute, who was, in 
the language of the accused in that letter, responsible for 
him, and notwithstanding that, he in terms authorized 
Cooper not to take the blankets if he did not like them. So 
far his personal connection with the matter. 

But in point of fact, the testimony of tlie New York mer- 
chants and brokers, and of Adolph and Toy, of Philadel- 
phia, take away from the sale every taint of exorbitant price 
or fraudulent design. The transaction itself shows that 
Stephens bought at |4 cash, when the importers would 
not have sold to Government on credit ; that he had to pay 
two and a half per cent, for his money, an additional one 
per cent, for the delay, and also the costs of transportation ; 
to lose the value of the wrappers, and take two-thirds of his 
payment in certificates of indebtedness at a discount. The 
rates at that time ranged from 96 to 98, so that he realized 



3Y 

on this purchase rather less than ten per cent, , and had to 
take the risk of waiting months for his pay. The result of 
the operation shows no exorbitant price ; while tliere is no- 
thing from which it can rationally be inferred, that the ac- 
cused was actuated by any wrong motive in giving the 
order which he did. 

The remaining point of this 5th Specification is, that in 
consequence of the order to Stevens from the Surgeon Gen- 
eral, to turn over the blankets to Cooper, he Cooper was 
compelled to receive them, though they were at an exhorbi- 
tant price, and he had previously refused to buy them, thus 
depriving him of that discretionary power which as Medical 
Purveyor it is charged he was entitled to exercise. Now was 
Cooper so robbed of discretion in the premises, or was he in a 
position to receive or reject the blankets in question, as he 
thought fit? Unquestionably the latter is proved to have 
been the case. We will demonstrate it. The proof is that 
on the morning of June 16th, Stevens presented to him the 
order, or memorandum from the Surgeon General directing 
the blankets to be turned over. In this both Cooper and 
Stevens concur. The transaction began on the 14th June, 
with the communication from the Surgeon General of that 
date. It was a continuing transaction on the 16th, when 
the conversation between Cooper and Stevens occurred. 

Stephens swears he had no such order as Cooper has de- 
scribed ; the letter of the accused of June 17th also shows 
it, and it is not true that the interview closed the transac- 
tion. Dr. Cooper knew that it did not, for he has sworn 
that if the blankets had not corresponded loith the samples^ 
he would not have received them, and he knew just as 
well as do the members of this Court, that up to the point 
of actual inspection and receipt, he not only had the right 
the Government invariably reserves to itself to reject an 
inferior article or one that does not come up to sample, but 
it was his duty to do so, and it is in proof by Cooper him- 
self, that the delivery was not until the 21st of June, thus 
giving him five days from the interview with Stevens and 
the delivery of the goods for action as to their receipt or 
rejection. Five days pregnant with information and instruc- 
tion to Dr. Cooper, for as we have already clearly shewn, he 



38 

wrote to tlie Surgeon General on the 16tli, after Stevens Iiad 
told him the price was $4.60, and referred the matter to his 
superior, as the reply of the accused of the lYth clearly 
shows ; and then on the morning of the next day, the iTth, 
he got a telegram from the Surgeon Gfeneral telling him ^'to 
do as he thought best about the blankets," which clothed him 
with absolute discretion to reject them, even if he had 
been previously directed to purchase or receive them, and 
this was followed by the explicit letter from the accused of 
the ITth, also, which he received on the 18th, in which the 
Surgeon General asks him if he is sure the blankets offered 
at $4.60 are the same as those offered the writer at $5 — tells 
him that ivhenever oi^ders are sent him to make particular pur- 
chases it is of course luith the full understanding that if he 
sees any objections to the purchase he is to refer the matter 
bach to the Surgeon General for further instructions as he had 
done in this case ; that the Surgeon General did not know 
much about Stevens, having never seen him but once in his 
life — and closes with this absolutely conclusive passage, ''if 
YOU don't avant his blankets, don't buy them at any 

PRICE ! ' ' 

In the face of such proof as this it is worse than idle for 
Dr. Cooper to talk about the Surgeon General having taken 
the matter out of his hands, and the fact that he had com- 
plete discretionary power in the premises is entirely too 
plain to require further discussion. 

The next specification in order is the 6th, the points of 
which are, that on the 31st July, 1862, the accused know- 
ing that the Wyeths had before that time furnished the 
Medical Purveyor at Philadelphia supplies inferior in quali- 
ty, deficient in quantity, and of excessive price ; did cor- 
ruptly, unlawfully, and with intent to aid said Wj^eth & 
Bro. to furnish further supplies, and fraudulently realize 
large gains therefrom, give Dr. Cooper, the Purveyor, an 
order to fill up his store houses so as to have constantly on 
hand, hospital supplies for 200,000 men for six months, and 
then and there directed said Cooper to purchase a large 
amount thereof to the value of $1*73,000, from said Wyeth 
& Bro. 

As to the guilty knowledge of the accused involved in 



39 

this specification, Doctor Cooper is the sole witness, except 
so far as Keffer may be considered auxiliary to the extent of 
his testimony as to the single Lottie of alcohol opened in 
his presence, when in the true spirit of a hawker he was 
trying to vend his own wares, and as to the luminous chem- 
ical suggestions he throws out upon the nature of fusel oil, 
and the tests by which its presence is distinguished, gathered 
from his workmen in the back shop. 

Having sufficiently examined the value of any testimony 
given by Dr. Cooper, we content ourselves with calling the 
attention of the Court on this point to the letter to him from 
the Surgeon General of date July 29th, which he is shewn to 
have had in his possession at the time specified in the allega- 
tion, and the contents of which are in direct accordance with 
the suggestions Cooper says he made at that time to the 
Surgeon General, and equally in conflict with the oral in- 
structions he says he then received from him. On the other 
hand Cooper admits that although previous to the personal 
interview with the Surgeon General of July 31, he had 
knowledge of these alleged deficiencies as to the quantity and 
character of those supplies, and their excessive price, he had 
never made to the Surgeon General any communication on 
the subject, oral or written^ and although the Regulations 
require the Hospital Surgeons to make reports to the Pur- 
veyors of any such deficiency, he himself had not re- 
ceived a single official complaint from them, except from 
the Chester Hospital in regard to some of the liquors. It 
is not to be credited that at that interview he communicated 
to the Surgeon General the fact and extent of such deficien- 
cies as he has stated, nor does Kefier sustain his statement, 
his testimony being confined to the bottle of alcohol opened 
in his presence, the short measure of which is clearly ex- 
plained by the testimony of Mr. Harrison Smith, Dr. A. K. 
Smith, Mr. Frank Wyeth, and Hughes, who bottled the al- 
cohol. 

We are however not obliged to rest here ; for the prompt 
action of the Surgeon General in sending first. Inspector 
General Perly to investigate the afiairs of the Medical Pur- 
veyor's office at Philadelphia, and subsequently Surgeon 
Coolidge, to examine into the character of the medical sup- 



40 

plies in the Hospitals and Purveyor's office at that pointy 
the moment complaints were made to him, is a pregnant 
circumstance to show that such information was not com- 
municated to him by Cooper at the time charged in the Spe- 
cification. 

We say next that in point of fact, the defects in quality or 
deficiency in quantity of any of the supplies furnished by 
Wyeth & Bros., so alleged, are shewn by the proof to have 
been nothing beyond the isolated accidents inseparable from 
the execution of such large orders, which involved in their 
putting up great labor and minute details, under the pres- 
sure of circumstances demanding the utmost despatch in their 
preparation and delivery. 

As to the character and quality of the drugs, medicines, 
and medical supplies furnished by this house, the concurrent 
testimony of every Surgeon who has been examined, viz : 
Dr. J. H. Thompson, who used them in the Burnside Expe- 
dition, when the purchase of them was directed by Surgeon 
General Finlay — Surgeons Magruder, J. J. Hayes, A. K. 
Smith, L. A. Edwards, R. 0. Abbott, L. Baldwin, J. B. 
Rowe, E. P. Vollura, John M. Cuyler, Wm. Thompson, R. 
H. Coolidge, J. Hopkinson, J. Letterman, and Drs. Mur- 
ray and Cox, Medical Purveyors, Mr, Farr, of the house of 
Powers & Weightman, who i'urnished them by far the 
largest part of their medicines, and who also put them up 
according to the supply table, Mr. Locke, who made the 
alcohol they supplied, and the high reputation of which is 
established by the standard authority of Wood & Bache's 
Dispensatory — and Mr. Harrison Smith, who purchased their 
liquors, teas and bottles, establishes the high character of 
the supplies they furnished. 

Add to this, the admitted fact, that prior to the 31st July, 
no official complaint was made to the Surgeon General, of 
the quality or character of their medicines or the manner in 
which they were j)ut up, it cannot be doubted that the 
Messrs. Wyeths dealt in entire good faith v>^ith the Govern- 
ment ; while the isolated cases in which defective articles 
were found in the large requisitions they furnished, are 
shewn to have been met by them the moment their attention 



41 

was called to the matter, by a prompt replacement witli un- 
exceptionable articles. 

It may be as well at this point to dismiss with very brief 
comment, the matter of the whiskey ordered by Surgeon 
Vollum, which Dr. Cooper had put into tin cans through a 
misapprehension of the order of Dr. Vollum, although with 
the whole transaction the Surgeon General had nothing to 
do ; although many days of valuable time were wasted by 
the forced and wearying presentation of the subject to the 
Court. 

To this branch of idle enquiry the accused interposed an 
objection, but at once withdrew it on the assurance of the 
Judge Advocate that he was to be connected with the enquiry 
by subsequent proof, which pledge was never verified ; the 
accused being in fact wholly unconnected with the matter, 
as seemed sufficiently clear at the time, his utter ignorance 
on the subject continuing down to November, six months 
after the transaction, when his attention being called to the 
condition of some of the whiskey that had found its way in- 
to some of the hospitals at Washington, he ordered it to be 
an^ysed and withdrawn from use, except for external appli- 
cation. The Court cannot have forgotten with what gusto 
the Judge Advocate presented to his witnesses the unpleasant 
looking mixture he had extracted from one of these cans, 
ferreted out from the recesses of a hospital, carefull}^ sealed 
up, and guarded in its transit thence to the cupboard of the 
Reeder Commission — where it was stowed away with the 
odds and ends of that Board of Investigation, and the hat- 
boxes of the witness Brastow, until it came to be submitted 
to the critical analysis of Professor Breed, who in his episod- 
ical attention to other pursuits for several years, seemed to 
have forgotten his Chemistry. 

Let the Court, if it really deems it necessary, contrast 
with all the fanciful hypotheses and violent strainings, after 
undiscernable poisons in this whiskey, the complete exhaus- 
tion of the whole story of its condition when it was shown to 
the Court, developed in the masterly analysis of Doctor 
Woodward and Professor Schaeffer, each word of whose tes- 
timony demonstrated their right to be considered Chemists, 



42 

and that they had fully and patiently evolved from the tur- 
bid liquid the evidence of its original soundness, good quality 
and perfect freedom from adulteration, and the proof of 
that chemical action which beginning with the Tannic acid 
imparted to the whiskey by tlie wood of the barrels in which 
it was originally put, resulted in the destruction, to a great 
extent, of the Fusel Oil in it as in all whiskies, and left it 
as a necessary result of the oxidation that ensued, in the 
peculiar condition in which tlie Court enjoyed the privilege 
of seeing it. 

So far the defence has been limited to the evidence of the 
order having been given by the accused to purchase the 
alleged large amount from, the Wyeths, his knowledge of 
the defects complained of, and the fact whether such com- 
plaints were founded in fact, if any such were made. 

But there is another point founded on this allegation which 
he feels bound to notice before leaving it, and that is the 
amount of that requisition. 

In asking the attention of the Court to that matter he 
takes the liberty to refer to a public document, part of the 
history of the country, to show that such large orders#for 
supplies were not made in the dark, nor from any corrupt 
motive, but as part of his immediate duty, looking to the 
end of having supplies secured before the price of every 
article should have been increased by the necessary course 
of events, and that he might have them ready for every 
emergency. 

In his report to the Secretary of war, date lOtli November, 
1862, published among the documents transmitted to Con- 
gress, at page 9, he says : " large depots of medical supplies 
have been established at New York, Philadelphia, Balti- 
more, Fortress Monroe, Washington, Cincinnati, Cairo, 
St. Louis, and Nashville, and have proved of incalculable 
advantage to the sick and wounded. Moj-eover, large sums 
have been saved by the accumulation of stores before the 
recent advance in prices took place." 

It is in evidence in this cause, in repeated instances, unde- 
signedly stated by Dr. Cooper, and confirmed by other wit- 
nesses, and it is obvious to reason that such large depots 



43 

were absolutely necessary. It requires but a glance at the 
supply table for three months for a hundred men — still more 
to cast your eye on the very requisition in controversy, and 
see the vast amount called for by it, and the manner in 
which those supplies were required to be put up, in small 
phials, in safe packages, to satisfy any one, that it would 
require a long time and great care and labor to prepare even 
for a thousand men. In this city alone and its surroundings 
there were in the months of July and August, 1862, nearly 
20,000 men in hospital : the struggle between Lee and Pope 
was going on, and it would have been such gross neglect of 
duty as would have justly subjected the accused to the cen- 
sure of his superiors and the public if he had failed to make 
ample provision for impending events. But this is only a 
limited view of the matter. The West and South and South- 
West, all were alive with the evidences of coming conflicts, 
and they also vs^ere to be provided for. Every article in the 
supply table was rising daily in the market, and on all ac- 
counts it was his duty to exercise a wise forecast in making 
ample provision, so that no one should suffer by his neglect 
and the treasury would be relieved by his nrudence. 

Here again we have a motive tending fully to explain the 
amount of that requisition, a motive which his judgment, 
his humanity and his patriotism could not overlook. 

If from his past experience and information as to the char- 
acter, quality and quantity of the drugs, medicines and hos- 
pital supplies furnished by the Wyeths ; the promptitude, 
skill, energy and despatch with which they had theretofore 
furnished them ; looking to the threatening aspect of the 
armies in the field, and knowing the condition of the hos- 
pitals ; anxious to be provided in time for every contingent 
event, and that the supplies should be on hand to meet every 
hurried demand, he had given directions to have the larger 
portion of that order filled by them, there would have been 
no just or reasonable ground of complaint in a military 
point of view, nor room for suspicions as to his integrity, 
much less would it afibrd a scintilla of proof of a corrupt 
motive. When the pressure of circumstances so momentous 
as those surrounding him furnishes a reason for his conduct, 



44 

it would be not only unjust but cruel to impute to him a bad 
or dishonest motive. If we can see in this order any other 
than a desire to benefit the Wyeths ; if we can see a high 
sense of duty and responsibility underlying the whole trans- 
action ; if we can see the wounded and the dying on the 
battle-field, and the sick and wasted in the hospitals stretch- 
ing forth their hands and crying for help, and the officer 
charged with the duty has made ample provision for them 
in anticipation of their needs, we should not stop to criticise 
too severely and ask whether in furnishing those supplies 
he did not mean to help a friend. The burthen of proof is 
upon him who alleges such a bad motive, and he must put 
it beyond a peradventure. There must be no room to doubt. 
The act must be so characterized as to leave no question as to 
the motive being wrong. If it were not so, God help every 
officer who does not carry with him a glass in his bosom 
by which his motives are to be seen, for by his acts he is 
not to be judged. 

It is denied distinctly, emphatically, positively, in the de- 
tail and in the aggregate, by the accused, that any base or 
sordid motive, any desire to favor a friend at the expense of 
his duty entered into or formed any part of this order for 
the supplies ; it is denied with equal directness and distinct- 
ness, that he gave any direction to have any particular part 
of it supplied by the Wyeths ; it is denied that he received 
from Dr. Cooper the information which he says he then gave 
as ±0 the failure of the Wyeths in their former transactions 
either in the quality, weight, or quantity of their supplies ; 
and at the same time he maintains that if be bad .received 
such information from Cooper, not vouched for by any 
report from any officer having charge of those drugs, medi- 
cines and supplies, and relying upon his own personal know- 
ledge and the information of others as to the manner in 
which they had theretofore filled their contracts, he would 
have been fully justified in giving the order, aad the proofs 
in this cause already given would have sustained him in so 
doing. 

The 1th. specification of this first charge gives rise to the 
question as to the true construction of the Act of the 16th 



45 

April, 1862, as well as that of the motives of the accused 
in himself ordering extract of beef from the AVyeths. It is 
that contrary to the provisions of that act he did corruptly 
and unlawfully direct Wyeth & Brother to send 40,000 cans 
of their extract of beef to the d ifferent places named in the 
order, and send the account to the Surgeon General for pay- 
ment ; and which extract of beef so ordered loas of inferior 
quality, unfit for liospital use, unsuitable, and univliolesome for 
the sick and wounded in the Jiospitals^ and not demanded by 
the exigencies of the public service. 

The specification is skillfully drawn. It exhibits the in- 
genuity of the special pleader. Yet if it were subjected to 
the crucible of the courts administering the common law, it 
is fatally defective, and on demurrer would be pronounced 
bad. It includes a number of distinct offences. So much 
so that it defies the ingenuity of the accused to determine 
what specific allegation he is to meet. Is it that every 
purchase made by him since the enactment of the law is 
wrongful and unlawful ? Is it that to make it unlawful and 
wrongful it must be corruptly made? Is it, in the particular 
case, that the article purchased was inferior in quality ? or 
that it was unfit for hospital use ? or that it was unsuitable 
and unwholesome for the sick and wounded in hospitals ? If 
it shall appear from the law that he had the power to pur- 
chase ; that the article was sound, wholesome, admirably 
adapted to the battle-field, to sudden emergencies, to a thou- 
sand cases, but not suited for hospital use, can the specifica- 
tion be maintained? or must all the averments of the speci- 
fication be proved ? or is proof of any one or more of them 
sufficient to sustain a conviction ? 

In some circumstances these would all be material ques- 
tions for the consideration of the Court, and the accused 
might confidently, as he does, insist that every fact thus 
severally and specifically alleged, not by way of aggrava- 
tion, but as constituting parts and parcels — necessary in- 
gredients in the offence intended to be assigned must be 
'proved to the satisfaction of the Court ; that they in combi- 
nation constitute the offence charged, and cannot be found 
in part in order to sustain the specification. 



46 

Not waiving any one of these points of objection, but re- 
lying on them, the accused, as he has done throughout this 
case, meets the accusation in each and every of its particu- 
lars, satisfied that the more rigidly his administration of 
his office, and all his acts connected therewith are examined 
and criticised, the more triumphant will be his acquittal of 
any charge or allegation affecting his honor as a man, or 
his duty as an officer. 

The fact that he gave the order set out in the specifica- 
tion is not disputed. It was done, as all his other acts were 
done, in the conscientious discharge of the duties imposed 
on him by law. His construction of that law has been 
given in part ; but that construction does not fully cover the 
case now put. 

The assumption on the part of the prosecution is, that he 
is thereby prohibited from making any purchase ; that all 
selections and purchases are to be made by the Purveyors ; 
and every purchase made by the Surgeon G-eneral is wrong- 
ful and unlawful. 

It is a grave question. It deserves to be considered with 
all the care which its importance in this particular case re- 
quires ; but still more in its bearings on analogous cases in 
other branches of the service. 

The statute does not say, in terms, all purchases shall be 
made by the Medical Purveyors. The words are: "The 
Medical Purveyors shall he charged, under the direction of 
the Surgeon General, with the selection and purchase/' &c. 
They are to be charged. The laio does not charge them. 
The law does not say they are ^'■hereby charged,," but shall 
be charged. By whom are they to be charged? They are 
to be charged under the direction of the Surgeon General. 
The words of the statute do not in terms prohibit a pur- 
chase by him who, as the head of the office, is to direct 
another. Nor do they, by necessary implication, exclude 
the Surgeon General himself from purchasing. They do 
exclude the Purvej'^or from purchasing of his own voli- 
tion. He must have the direction of the Surgeon Gen- 
eral. And so in regard to the Commissary and Quarter- 
master's Department, and the various other bureaus of 



47 

the several principal branches of the executive authority. 
In each and all of these the power is given to direct pur- 
chases to be made ; to appoint agents for that purpose ; to 
devise checks and balances to secure a proper accountability. 
Here the only difference is, that the law points out the 
agents to be employed, so that neither Inspectors, nor Direc- 
tors, nor Surgeons in the line or in liospitals, shall be 
charged with the duty of selecting and purchasing, unless 
they are also Purveyors. 

An illustration may be drawn from the laws empowerino- 
the Quartermaster General, and the Commissary General 
and the head of the Ordnance Bureau to make contracts. 
They all make contracts subordinate to the superior author- 
ity of the Secretary of War ; they all delegate the authority 
to their subordinates to make contracts or obtain the neces- 
sary supplies. Undoubtedly contracts so made are valid 
contracts, and would bind the Government, although there 
may be no statute authorizing them. Nor could the officer 
making them be charged with a wrongful and unlawful act, 
and subjected to a Military Court, unless it could be further 
shown that they were corruptly made. And so an officer in 
the field commanding an army, or having a detached com- 
mand, has and must have, by virtue of his office, power to 
make contracts for supplies, with which the Quartermaster's 
Department is charged by law. Tlie illustrations are nu- 
merous, and recur readily to the mind of every one practiced 
in military affairs. But they are none of them strictly 
analogous. None of them are cases where, by the express 
words of the law, a particular subordinate officer is to be 
charged, under the direction of his superior, with power to 
purchase, and the discretion is left to the superior. Such is 
the case here. 

And the whole scheme and policy of the administration of 
the Medical Department, as developed in the act creating the 
office of Surgeon General, and the laws artd regulations sub- 
sequent to it, and the practice of the office grown into a 
usage, as shown in the proof, are consistent with this view. 
He is the administrative officer. The rest are subordinates, 
given to him as aids to effect the purposes of his office. He 



48 

cannot multiply himself, so as to carry out all the details of 
the service, hut he is held accountable to the country for a 
faithful supervision of those subordinates, and a wise, pru- 
dent, and faithful discharge of his own powers and duties. 
Among these duties none is more important than the prepa- 
ration, in due time, of fitting supplies to meet the constantly 
recurring demands of his office. The Purveyor is given to 
him for that purpose, but he is made entirely subordinate, 
w'ithout power to make a purchase except under his direc- 
tion, and no Purveyor, as we have seen, can make a pur- 
chase unless he is '■^ charged " wnth that duty, under the 
direction of his superior. It follows that as the duty of 
providing the supplies exists, and is imposed on the Surgeon 
General by virtue of his office, and the regulations of the 
President, and the usages of his office, he must have the 
power both to purchase himself and to charge a Purveyor 
with that duty under his direction. The power then exists, 
and he may lawfully exercise it himself or charge a Pur- 
veyor with it. 

If the power exists, and whether it does or not, we pro- 
ceed to examine the manner in which, and the circumstances 
under which it was exercised in this case. And if ever the 
exercise of a questionable authority was justified or excused, 
the evidence discloses a condition of things which af- 
fords justification and excuse to the accused for the acts set 
out in this specification. If the Court shall doubt as to the 
power of the accused, exercised as it has been by his prede- 
cessors, without objection or complaint, it is far better to 
leave the remedy to Congress than by their judgment to 
subject him to censure, if he has acted in good faith, be- 
lieving he had the power. 

The remaining questions under this specification are : Did 
he act corruptly ? Was the extract of beef, so ordered by 
him, inferior in quality? Was it unfit for hospital use? 
Was it unsuitahle and umuholesome for the sick and w^ounded 
in the hospitals ? Was it or not demanded by the exigencies 
of the public service? 

The history of the introduction of this article into the 
service of the army is exceedingly well given in the testi- 



49 

mony of Mr. Coleman. The origin of its manufacture by 
Wyeth is also very clearly shown in the proof. There was 
at the time this order was given, no other preparation of the 
like kind known to the Department, but that of Mrs. Mur- 
ringer. Such is the concurrent testimony of all the witnesses 
except Dr. Cooper. 

It had been tried on the Peninsula, and its virtues in part 
ascertained, and antecedent to the order in question the 
bloody field of Bull Run had demonstrated the value of the 
preparation, and the Court cannot have forgotten the testi- 
mony of Inspectors Coolidge and YoUum, whose simple and 
touching narratives of its use on that occasion, brought so 
vividly to view the picture of the thousands of wounded 
and suffering soldiers, who, after the sad catastrophe of 
that battle, were in the absence of almost all other suste- 
nance nourished and kept alive by the timely supply of this 
very article, administered to them for successive days by 
these witnesses, who were thus enabled to save, as they 
have sworn, the lives of thousands of our soldiers not sim- 
ply by the intrinsic nutriment of the extract, but because 
of the peculiar facility and rapidity of ■ its preparation for 
use. 

Such testimony is sufficient of itself to justify its pur- 
chase by the accused ; but the proof in its favor goes much 
beyond this ; for although the prosecution consumed many 
days, and questioned a score of witnesses upon this point, 
the only instances in which unfavorable testimony was eli- 
cited, were the cases of Doctor Brinton, who tried a can of 
it on the road to Gettysburg and thought it did not agree 
with him, but who nevertheless testified that he issued large 
quantities after that battle, to the amount of thousands 
of cans, and never heard any complaint, save from one Sur- 
geon, who thought some of the cans he received were defec- 
tive ; and Surgeon Perrin, who wrote from Cincinnati that 
twenty hundred and forty cans of the lot sent to him were de- 
composed, assigning therefore as his reason, a test, which 
both Drs. Woodward and A. K. Smith, clearly proved to 
be entirely valueless. Some Surgeons were also examined, 
who preferred beef tea freshly made for use, in permanent 
4 



50 

hospitals, but who had no personal experience of this par- 
ticular article, and whose speculative opinions do not weigh 
against positive proof. On the other hand Dr, Weir Mitchell, 
of Philadelphia, one of the most accomplished physicians 
in the country — Surgeons Brewer, Hoif, A. K. Smith, Cuy- 
ler, Thompson, Hopkinson and Letterman, besides Surgeons 
Coolidge and VoUum, all bear witness in unequivocal terms, 
from their own experience, and some of them from an exten- 
sive use of it, to its good quality, its great facility of prepa- 
ration, its highly nutritious elements, and the fact that it is 
a most valuable preparation for Field Hospitals, and the 
exigencies of the battle field, while several of them even 
prefer it to the fresh tea for permanent establishments. — 
Surgeon Brewer was conclusive in his proof of its efficacy, 
and Surgeon Hoff testified that in his experience on the 
Mississippi where he issued large quantities, he could 
not have got along without it. Purveyors Creamer and 
Kittenhouse, who issued thousands of cans from St. Louis 
and Cincinnati never received a complaint from any quar- 
ter either as to its value or condition. Additional evidence 
in its favor is also furnished in connection with the identical 
lot of which Surgeon Perrin too hastily complained, in 
the testimony of Inspector Coolidge, who tested in his 
own family, and with a wounded officer in this city, a 
number of cans forwarded by Dr. Perrin by direction of the 
Surgeon General for examination. 

Such proof as has been thus briefly summed up, must set- 
tle the question of the allegations of its inferior quality, un- 
wholesomeness, and unfitness for use witli the sick and 
wounded. 

The remaining question is, whether it was demanded by 
the exigencies of the public service. The prosecution, with 
all the power of the Government at its disposal, for the estab- 
lishment of its theory, has been unable to discover more than 
a few thousand cans remaining on hand in the storehouses 
at Philadelphia, Washington, Cincinnati and St. Louis, and 
that residuum made up in fact not only of Wyeths and 
Bowers', but of Tourtellot's, Tilden's, Ellis', and Mrs. 
Murringer's — a supply which may be exhausted by the con- 



51 

tingencies of momently impending conflicts, whose sad cata- 
logues of sick and wounded will we think, sufficiently vindi- 
cate the wise prevision of the Surgeon General, in providing 
for contingencies only too certain to follow in the train of a 
bloody and protracted war. 

And here allusion may be made to the fact that in order 
to obtain for his department medical supplies of certain pu- 
rity and less price the accused, more than fifteen months 
ago, established manufacturing laboratories in New York 
and Philadelphia. Does this look like favoring private per- 
sons? 

The second charge is of conduct unbecoming an officer and 
a gentleman, and the only specification is that the accused 
on the 13th October, 1862, wrote a letter to Dr. Cooper, 
stating that he, Cooper, had been relieved as Medical Pur- 
veyor at Philadelphia, because among other reasons Major 
General Halleck requested as a particular favor, that Surgeon 
Murray might be ordered to Philadelphia, which declaration 
of the accused was false. 

There is scarcely any part of this prosecution which more 
clearly shows the venom of the principal witness brought to 
sustain it than this. He avails himself of a private letter, 
written in the kindest spirit, and in the confidence of the 
relations which the whole record shows had up to that time 
existed between himself and the accused, to inflict a deadly 
wound upon his honor, of a character from which every 
gentleman shrinks, and which repels every one from him. 
whether in his official or his social relations. There is in 
this a degree of malignity, and a want of high toned prin- 
ciple exhibited, which alone should make us look upon all 
his testimony regarding the accused with the gravest sus- 
picion. 

A charge thus made with a specification so distinct, should 
be supported by the clearest, and most direct evidence. 
There must be no want of recollection, no doubt, no hesita- 
tion, no room for misapprehension in the proof brought to 
support it. The memory of the witness who is assumed to 
sustain it must be as distinct and. clear as if the fact had been 
recorded at the time, and if possible it should be corrobora- 



52 

ted by some circumstance. The distinct affirmation of a fact 
made by an officer should have the same weight with his 
peers^ (although not admissible as evidence) on his trial, as 
if he had sworn to it, for it may be assumed without fear 
of successful contradiction that in ninety and nine cases out 
of a hundred the officer who would make such a statement in 
writing would swear to it. 

We have in this case the averment of a fact in writing, 
made by the accused at the time of the occurrence — made 
without any adequate motive to say what was false, yet made 
under all the solemn obligations which can bind a man of 
honor, holding a high rank in the confidence of his Govern- 
ment, and when the means of contradiction and the danger 
of discovery were both convenient and certain. For he knew 
the temper of the man to whom he was writing, and his 
promptitude and energy when he was aroused. 

Now after the lapse of more than fifteen months passed in 
the midst of a pressure of public aflairs, tasking his mind 
and memory to their utmost capacity of endurance, General 
Halleck is called to prove that he made no such request as 
the accused deliberately said he had made of him in October 
1862. General Halleck, as was to have been expected, does 
not contradict him. He says at page 6T6, he wrote a letter 
about the 1st October, 1862, to the accused in relation to 
Surgeon Murray, which letter is put on the record at p. 67*7. 
At p. 678, "to the best of his recollection," he says, he did not 
make any other communication to the accused upon that sub- 
ject, not even orally. This is the whole of it. This is no 
such denial as is absolutely required to disprove the assertion 
of the accused. The prosecution has undertaken to prove 
that assertion to be untrue, and they must prove, not that 
the witness does not recollect, hut that he does recollect, and re- 
collecting positively denies the fact. 

But this is not all. On the same page Gen. Halleck says 
he received a communication from Dr. Murray ; "to the best 
of his recollection," [the very words used in chief,] he said in a 
private letter, "I should like to go east on hospital duty." 
I do not think he designated any place ; and I wrote the 
letter to the accused immediately after receiving Dr. Mur- 
ray's letter, probably the same day." 



53 

That letter of Surgeon Murray to General Halleck will be 
found on pp. 716, 717 of the record, and in it he says, p. 
717, ''I want to be ordered to Hospital duty in Philadelphia, 
New York, or some point north of these places. Philadel- 
phia ivould suit me best." '^If you will send a memorandum 
to the Surgeon General's office, requesting him to order me to a 
Hospital in Philadelphia it will be done at once." 

The accused does not say Gen. Halleck asked him to make 
Murray purveyor, or to give him hospital duty, but to assign 
him to duty in Phihadelphia, and he was not at that time as- 
signed to duty as Purveyor. Hoiv did he knotv that Murray 
desired to go to Philadelphia, and how did he Jcnoio that he 
had so loritten to Gen. Halleck f It is quite clear tJwse facts 
ivere known to him, and they must have come through Gen. 
Halleck, for the letter was a private letter, and although Gen. 
Halleck does not in his letter to the accused ask that Murray 
shall be sent to Philadelphia, yet no rational mind can resist 
the conclusion from the evidence on this subject that Gen. 
Halleck did make the request in some personal interview, 
and in the vast amount and weight of other matters by 
which he was overwhelmed, has forgotten it as he forgot 
that Murray, his friend, applying to him for aid, and whose 
cause he espoused, asked him to do precisely what the ac- 
cused says he did do, if not send a memorandum^ at least 
request the accused to order Murray to Philadelphia. 

It is no reproach to General Halleck to suppose he has 
forgotten a comparatively trivial private matter, while it 
would be unmitigated disgrace to the accused to find him 
guilty of fabricating a falsehood so idle and purposeless as 
that with which he is herein charged. 

The accused knows that he made no intentional misstate- 
ment of the wishes of Major General Halleck, and he is posi- 
tively sure, and avers that he had a conversation with him, 
in the course of which reference was made to the transfer of 
Doctor Murra}'' to Philadelphia, and he cannot believe that 
a Court of the high character of the one required to decide 
this question, will do him the injustice of attaching crimi- 
nality to a matter so easily and naturally explained by the 
suggestive circumstances surrounding it. 



54 

As to the third charge and the two specifications under it, 
the accused hesitates to make any reply. 

He is charged with conduct to the prejudice of good order 
and military discipline. 1st, that on the 8th November, 
1862, he did unlawfully and corruptly order and cause Hen- 
ry Johnson, Medical Storekeeper and acting Purveyor at 
Washington City, to purchase three thousand blankets from 
from one J. P. Fisher, at the price of $5.90 per pair, to be 
delivered to surgeon Cooper at Philadelphia. 

There was a clerical mistake in the order to purchase these 
blankets from J. P. Fisher, it should have been T. J. Fisher. 
The order was not given by the accused personally, but by 
one of his assistants, and that fact stands out palpably as 
known to the prosecution. Yet much was sought to be 
made of this, as though it were a badge of concealment. 
The proof on the part of the government is conclusive, first, 
that the blaukets were required by Cooper. His letter is in 
the record. Second, that he could not get them in Phila- 
delphia. Third, that T. J. Fisher offered them to the ac- 
cused when they were thus needed, and the accused directed 
Mr. Johnson to buy them at a price which was below the 
market price, and Johnson did buy them and they were sent 
to Cooper. The witnesses are T. J. Fisher, Mr. Waterbury 
and acting Purveyor Johnson. 

It is difficult to conceive the motive which prompted this 
specification, when not only is there a total absence of proof 
on the part of the prosecution to show any corrupt motive in 
the accused, but the evidence produced by them, indepen- 
dent of the explanation given by Mr. Fisher and Mr. Water- 
bury, shows the public need demanded the blankets to be 
sent to Cooper, and there is not a particle of proof to show 
that the charge was too high; and the very "direction" 
given by the accused to the Acting Purveyor was within the 
letter and spirit of the Act of 16th April, 1862. 

And the second Specification of this charge, that he did 
on or about the 3d December, 1862, unlawfully and corruptly 
purchase or caused to be purchased of J. C. McGuire & Co., 
large quantities of blankets, and bedsteads, tcliich were not 
needed for the public service, is like its immediate predeces- 



55 

sor, a wonder and surprise, for it is not only not proved, but 
is disproved by the prosecution itself. 

■ Under these two specifications and this third charge, the 
prosecution has taken a roving-commission; has put Bras- 
tow and Breed on the trail ; the witnesses have moused 
about in the storehouses and hospitals, explored the Insane 
Asylum, and with marked evidences of unsound condition 
in themselves, have found unsound whiskey not fit for any 
kind of use, and unsound chemistry to demonstrate its un- 
fitness ; unsound tea, and a most uncertain source of its 
supply -, and that the unhappy inmates of the hospital who 
fell into' the hands of this corrupt and reckless head of the 
Medical Department, were deprived of the right of spending 
their hospital money, not the money of the Government, as 
their hospital stewards and surgeons saw fit, and compelled 
to take wholesome fresh, daily, hospital supplies at cheaper 
rates, furnished in a more convenient mode. Beyond this 
they have found that Fisher and McGuire supplied better 
articles at a cheaper rate, with more expedition and^ cer- 
tainty than any one else, [so swears Dr. Laub, and he is no 
friend of the accused] ; that Kid well and Cissell supplied 
drugs and medicines, and even extract of beef, at Philadel- 
phia prices ; and Cozzens, Tarragona and other wines of fine 
quality at a fair price ; they have also found that in some 
instances the accused directed articles to be purchased by the 
Purveyor in charge, in others approved contracts made by 
him, and in others ordered him to procure supplies, which 
the Purveyor translated into orders to get them from par- 
ticular persons. 

And this is no distorted or exaggerated statement of the 
outline of these two specifications— specifications as earnestly 
pressed as those involving the dealings with Stephens and 
Wyeth, but they lacked the support of Dr. Cooper or his dis- 
tinguished friend Mr. Keffer, the distiller of alcohol, who rubs 
his^irit on his hands to see whether the fusel oil in it will 
glue them together, and who examines liquors at a hospital 
by the request of certain physicians, one of whom did not 
know him, the other was not there, and had never seen him, 
and neither of whom had asked him to do any such thing. 



56 

If Cooper and Keffer could have "been added to Breed and 
Brastow — Brastovv brought up in a country store, to attain 
knowledge and skill in the inspection of blankets^ teas 
and liquors, and to head a commission to investigate the con- 
dition and aifairs of the medical department of the largest 
army in the civilized world — if they had only been associated 
in the explorations here, there is no telling what might 
have been the result. As it is they had only Dr. Laub to 
tell the truth so far as his memory would assist him, and 
Brastow and Breed to give the coloring. 

Under these specifications the prosecution has introduced 
the proof in regard to the quality of the bedsteads supplied 
to the Department ; their number and value ; and with 
the contracts present made by Dr. Finley, the immediate 
predecessor of the accused, with Fisher in the month of 
April, 1862, and in progress of execution when the accused 
came into office, has strenuously labored to exclude those 
contracts from the notice of this Court, while it has as 
strenuously endeavored to charge all the bedsteads furnished 
under them to the administration of the accused, especi- 
ally and particularly those furnished to Dr. Satterlee. It 
has endeavored to show that Fisher charged widely dif- 
ferent prices for the same article, and the higher price was 
approved, and when driven from this ground by the force of 
the irresistible testimony of Fisher and Dr. Murray, the 
prosecution falls back on the last contract made by Dr. Mur- 
ray with Mr. Fisher as proof of the exorbitant character of 
the others, and, such is the tenacity of purpose with which 
a conviction is sought to be obtained, when Mr. Fisher shows 
conclusively that he lost money on that contract, and only 
took it to avoid a greater loss on material prepared and on 
hand to fulfil a previous contract which he well believed he 
had made, the prosecution again falls back on the oral or- 
ders which it is supposed were from time to time given by 
the accused, and does not yield when it is proven the accused 
never gave Fisher an order in his life. It would be a waste 
of time to pursue this matter further. There is an absolute 
failure of proof. 

And so, as to the blankets referred to in the same specifi- 



5Y 

cation — needed by the Government — bouglit by Fisher for 
cash — sold to the Government on credit — a good article at a 
fair price — purchased by the Purveyor by direction of the 
accused, what can be said upon the proofs here to show a 
corrupt motive in so plain a case of a simple discharge of 
duty. 

And so as to all the supplies furnished by McGuire and 
Fisher, in fitting up the numerous and extensive hospital 
churches with promptitude, energy and despatch for the re- 
ception of the sick and wounded, the wasted, and worn sol- 
diers from battle-field, and hospital, who were being crowded 
into this city. 

If there is an act in the life of the accused which merits 
commendation, it is this very action, now made the ground 
of accusation, which enabled him to provide, as fast as they 
arrived, for the thousands of soldiers then poured into this 
city needing medical aid and treatment, and who without 
his earnest, ceaseless, watchful care and providence at that 
time must have been subjected to great suffering. 

Dr. Laub himself confirms all this. But it may stand 
alone on the testimony of Mr. Fisher, who although at that 
time and long afterwards personally unknown to the accused, 
deservedly enjoyed, and still enjoys among his fellow citi- 
zens a reputation for integrity, fidelity and truthfulness that 
has no superior. 

It remains, after the brief discussion of the several charges 
and specifications to which the attention of the Court has 
been invited, to task their patience for a few minutes longer 
in calling to their notice various matters which have formed, 
as it were, side issues in the trial of this cause. This is the 
more necessary because it has been found impossible, in the 
time allowed for this defence, to make an analysis of the 
testimony, such as it was the design of the accused to have 
presented, and which would materially have relieved the 
Court in their examination and consideration of it. It is so 
disjointed ; the evidence relating to the same matters is so 
scattered throughout the volume and mass of the proofs ; 
there is so much immaterial and irrelevant matter inter- 
mingled with it, that such an analysis is greatly needed, 
and the accused has to throw himself on the patient indul- 



58 

gence of the Courts so long extended to him already, while 
he briefly recalls some of those parts which may seem to 
have some bearing on the points really in issue, although to 
his mind they have not the remotest relevancy to them. 

The principal grounds of accusation are : First, that he 
has exceeded his lawful power and authority in purchasing 
supplies himself ; in directing supplies to be purchased from 
particular persons, and in prohibiting their purchase at a 
certain place. Second, that he has corruptly employed his 
office to promote the interests of particular persons, and a 
particular place, although he knew those persons had been 
defrauding the Government, and the exigencies of the pub- 
lic service did not require the purchase. Third, that he has 
unlawfully exercised his office in requiring Medical Inspec- 
tors to report directly to himself. Fourth, that he has told a 
wilful falsehood. 

To each of these subjects matter the accused has, with the 
utmost brevity, but he hopes with clearness and precision, 
given his answers, resting on the evidence in the record, and 
a just and fair construction of the law_, for his full defence. 
But, as he understands the matter, numerous facts, not set 
out or in any way shadowed forth by the specifications, or 
any of them have been introduced to give coloring to those 
really charged, or to qualify the motive by which the acts 
charged have been characterized ; and however remote and 
irrelevant those facts may appear to him, it is proper he 
should take some notice of them. 

Great stress has been laid on the fact that Mr. John 
Wyeth is not here, and he has even been spoken of as a 
fugitive from justice. Mr. Wyeth is not on his trial now. 
He is defenceless and absent. It is difficult to perceive how 
this bears on the truth or falsity of any one of the accusa- 
tions against the accused. 

The testimony of Col. Scott, late Assistant Secretary of 
War shows that before Mr. Wyeth made his final prepara- 
tions to leave Philadelphia, he, Col. Scott, informed the 
Secretary of War that Mr. Wyeth was going as the agent 
of a company in which Col. Scott himself was largely in- 
terested, to explore a portion of the territory of Arizona, 
but having heard rumors of the developments made by the 



59 

Keeder Commission, lie would not go if lie was in any man- 
ner implicated by the report of that Commission. He was 
answered that the Secretary had not read the report, but he 
would let him know in a few days. The parties waited 
several days beyond the time indicated by the Secretary, and 
then hearing nothing from him, completed their arrange- 
ments. On the 20th Dec, 1863, Col. Scott was informed by 
the Secretary that a court martial would be ordered. On 
the same day Col. Scott replied that Mr. Wyeth must go ; 
and asked if any changes were necessary before Wednes- 
day, (the 23d,) to advise him. Nothing further was 
done, and Mr. Wyeth sailed on the 23d. The Government 
had the fullest oj)portunity to know when Mr. Wyeth 
reached California, and that he was there openly till some 
time in March. There was no concealment in his going ; 
or as to his whereabouts afterwards; he is not and never was 
a fugitive from justice. So much is due to Mr. Wyeth. In 
his absence the accused has lost a most material, and impor- 
tant witness. He was ignorant of his intention to go at that 
time, and equally so of his having gone till after this Court 
was ordered. He challenges a scrutiny into the record in this 
cause for a scintilla of proof, that he was in any manner 
interested with John Wyeth, or any member of his house 
in any of their transactions with the Medical Department, 
or for any fact tending to show such interest. 

And do in like manner the prosecution has drawn into 
this case an alleged failure of supplies immediately after the 
battle of Gettysburg. Under what specification all that 
evidence was admitted and how it bears on any one of them 
the accused is at a loss to discover. However that may be 
lie confidently points to the evidence in the record of Pur- 
veyor Brinton, Inspector Cuyler, and Director Letterman, 
and to the whole testimony on that subject for his complete 
vindication from every ground of suspicion of neglect or 
want of foresight on that occasion. 

And so in like manner, the evidence of Dr. Satterlee, as 
to the Port Wine purchased from Mr. Cozzens, and some of 
v/hich Dr. Satterlee thought was bad. To what specifica- 
tion does that apply ? That too is full and most satisfactorily 
explained by Mr. Cozzens,and put right by Purveyor Creamer. 



60 

And so as to tlie wines and teas purchased in the Dis- 
trict of Columbia, of which no notice is given in any one of 
tlie specifications ; wines and teas proved to be of excellent 
quality and bought at advantageous prices. 

And so as to the drugs and medicines purchased from 
Kidwell & Cissell, with which no fault could be found. 

And so as to the purchase of the remnants of Wyeths stock 
in the warehouse, a purchase which Dr. Murray has shown 
was made by himself, selected by himself, priced by himself, 
paid for by himself. 

To enumerate all the other outside matters, having no direct 
bearing upon any one of the issues, and which are irrelevant 
and immaterial, would exhaust the patience of the Courts 
and he forbears to press them further on its attention. 

The accused has now covered as fully as time and oppor- 
tunity would permit, the chief points of accusation against 
him. 

With skill and labor the law officer of the Government has 
sought to bring to the notice of the Court, the main facts and 
the minute details of the official connection of the accused 
with all the matters of alleged wrong doing. Unlimited 
in his power to collect witnesses and amass documentary 
evidence, the country has been traversed in search of the 
one, and the files of the Departments eviscerated for the 
other, and in the swollen record now open to the inspec- 
tion of the Court, it is fair to assume is embodied everything 
that could be supposed to tell injuriously upon the official 
conduct and fair fame of the accused. He has been a deeply 
interested party to this trial, not because its possible issue 
involves the loss of official position. That is indeed some- 
thing, but his good name is of infinitely greater value. 
His personal honor has been put in issue, and for it he makes 
earnest contest. Two years ago he went into the office of 
Surgeon General at the invitation of the President and with 
the confidence of the Government. Duties of the most im- 
portant and various character instantly devolved upon him. 
His responsibilities were grave and heavy. The land re- 
sounded with the tread of immense armies, and their needs 
demanded from him prompt and earnest action. The rap- 
idly developed necessities of these great armaments also re- 



61 

quired important changes in the organization of his Depart- 
ment, and much labor was needed to increase its efficient 
working. The changed condition of national affairs called 
for larger expenditures and larger views, and this, as the evi- 
dence shows, when ready money was not at his command. The 
reputation of the country demanded that the brave defenders 
of its highest interests, should be accompanied everywhere and 
under all circumstances with whatever an advanced medical 
science, and a thorough prevision of their wants could suggest. 
To do this — to do it completely, so that all probable contin- 
gencies of sudden demand should be confronted with an ample 
supply, and to discharge all his duties with no contracted 
ideas of an unwise and hurtful economy, but with a compre- 
hensiveness bearing some relation to the magnitude of the 
great events in the midst of which he was acting, the accused 
confesses to have been his ambition. Doubtless his performance 
may have fallen short of his desire. Doubtless he may have 
committed mistakes of policy. Doubtless in the midst of en- 
grossing duties he may have failed at times fully to satisfy 
the demands of the service. Of one thing however he is ab- 
solutely sure, that with right purposes and honest motives he 
has endeavored to discharge his duties, and upon careful revi- 
sion of the record of this case, he sees in it no sustained asper- 
sion of his honor. It shews that in all the multiplicity of the 
transactions it has disclosed, and in the millions of expendi- 
tures to which it has referred, no single witness could be pro- 
duced, though all of them who ha-d dealt with his Department 
were challenged to the proof, who casts upon him the shadow 
of personal corruption. Whatever of erroneous judgment, of 
unintentional error there may be, not only is no corruption 
shown, but it is positively disproved by the most emphatic 
evidence. The Court has heard the case with patience and 
courtesy. To it is now committed the judgment of his con- 
duct, and the accused asks only a candid consideration and a 
just decision. 

WM. A. HAMMOND, 

Surgeon General U. S. A. 

Joseph H. Bradley, Washington, ) p , 
J. Morrison Harris, Baltimore, ) ounse . 









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